i 




5 LIBRARY OF CONGRESS. 

# 



t p r* 



{ UNITED STATES OF AMERICA. ! 



LEGAL 



RIGHTS AND DUTIES 



FARMERS. 




BY 



GEO. W. HOOD 



MEMBER OF THE INDIANA COUNTY BAR, AND PENNSYLVANIA 
■STATE BOARD OF AGRICULTURE. 




LANCASTER, PA. I 

INQUIRER PRINTING AND PUBLISHING CO. 

1880 . 






COPYRIGHT: 

1880. 



INQUIRER P. & P. CO., 

STEREOTYPERS AND PRINTERS, 

LANCASTER, PA. 



% 



PREFACE 



THE design of the author in the preparation of this 
volume, has been to put in a convenient and prac- 
tical form, for the use and benefit of farmers, such in- 
formation concerning their legal rights and duties, or 
such as are peculiarly important to them, as is neces- 
sary for every farmer to possess in order to be success- 
ful in the work in which he is engaged. 

We do not expect to make every man his own law- 
yer, or to impart sufficient information to qualify the 
farmer to enter into all the " niceties " of the law, but 
to give him such information as will save him from its 
many entanglements. 

It is proper to say that entire originality is not 
claimed, but our endeavor has been to compile, in a 
measure, from recognized authority, and from the de- 
cisions of our Courts, what is well settled law in our 
State with reference to the subjects treated. 

The work was, in the main, prepared by the author 
(iii) 



IV PREFACE. 

in connection with his duties as a member of the State 
Board of Agriculture, to be published in the Agricul- 
tural Reports, but he yielded to the many requests of 
farmers and others throughout the State, to publish it 
in a separate volume for general distribution ; and if 
we have been able to impart any valuable information, 
or to save any farmer from unnecessary litigation, we 
shall feel that our purpose has been entirely accom- 
plished. G. W. H. 
Indiana, Pa., Jan. 25th, 1880. 



TABLE OF CONTENTS. 



PAGE. 

How to Buy a Farm 7 

What a Deed Includes 17 

Ways Over the Farm 20 

Water Rights 26 

Farm Fences _«.. 30 

Line and Overhanging Trees 37 

Law of Estrays 40 

Trespassing Upon the Farm 45 

Farmer's Liability for His Animals 59 

Sales of Stock with Warranty 62 

Fires 72 

Rights in the Road 78 

Landlord and Tenant 83 

Nuisance 95 

Table of Cases 105 

Forms 110 

Game LaVs 126 

(v) 



FARMERS' 

RIGHTS AND DUTIES, 



A S every farmer either owns a farm himself or at 
^~~^ some day expects to be the owner of one, natur- 
ally the first inquiry is " How to buy a farm, and what 
is requisite to know about it before purchasing." 

It is a fundamental law of our land that a mere oral 
bargain for a farm is not binding in law on either 
party; and an offer to sell a farm for a given price, even 
though it be by letter, is not binding on the party pro- 
posing to sell until actually accepted by the buyer, 
and he has agreed to take it, and pay the price stated 
in the offer ; and although in making*; the offer to sell 
he should expressly give you a certain number of days 
to decide, he may, nevertheless, change his mind at 
any time, if you have not accepted, and sell to another 
before the time has expired. And although you had 
decided to accept his offer and take the farm, and 

(7) 



8 farmers' rights and duties. 

should move upon it with your family and farming 
utensils, but had not notified the owner of the fact, he 
might even then refuse to sell, and you would have no 
legal remedy either to compel him to convey, or for 
the expenses you had incurred by reason of his failure 
to keep his word. The only safe way is to take a 
bond for the deed, or have a written contract entered 
into at the time the bargain is made. And if a par- 
ticular time is given in which to accept an offer to sell, 
you should be particular to signify your acceptance 
strictly within the time, and in accordance with the 
offer made. 

In one instance a man had ten days in which to 
make up his mind, and on the night of the last day, at 
half past eleven o'clock, he called at the owner's house, 
when he was in bed and asleep, and said he would 
take the farm. The owner refused to get up, or to 
take the money next day, and the buyer brought suit 
to compel him to convey the farm ; but it was held 
that he came too late on the last day, and he was 
driven out of court with costs of suit.* 

In another instance A wrote to B that he would sell 
his farm for $4,000 cash. B wrote back by return 
mail that he would accept the offer and take the farm, 
if A would make out his deed and send it to a lawyer 

*26 Miss. 309. 



FARMERS RIGHTS AND DUTIES. 9 

for examination, and, if all was right, he would pay 
him his price. But it was decided that B had not 
duly accepted A's offer, because he did not accom- 
pany his acceptance with the cash.* 

But whilst it is true that a mere oral bargain for a 
farm is not binding in law on either party — the seller 
not being bound to convey, and the buyer not obliged 
to take the farm — yet it is well settled law in Pennsyl- 
vania that an action will lie on a verbal agreement for 
the sale of land; and in the absence of fraud the meas- 
ure of damages for its breach is compensation for the 
money paid and expenses incurred on the faith of the 
bargain. 

If no consideration has been paid, and no expenses 
incurred, only nominal damages are recoverable.! 

The most important inquiry for the farmer, and one 
he should always make before purchasing, is as to the 
correctness of the title and the validity of the deed. 
The chain of title should be thoroughly understood 
by the purchaser, else one day he may find that all his 
labor has been done for the benefit of another, who 
has a prior claim to his farm. 

The deed should be an instrument of writing, com- 
plying in all respects with the requirements of the 

* 53 Maine 511. 

f Thompson vs. Shepler, 72 Penna. 160. 



10 FARMERS RIGHTS AND DUTIES. 

law, and should so fully and so clearly set forth the 
purchaser's right to the land he purchases, as to put 
the question of discrepancy or deficiency of title be- 
yond the peradventure of a doubt. 

If this rule was strictly carried out by our farmers, 
long and tedious litigation as to the lawful owner of 
the land would very often be avoided; and many a 
farmer to-day is living, no doubt, in constant fear and 
dread because he knows not whether the place he now 
calls his home, and where he has spent many years 
of his life, shall continue in his possession much longer. 

The deed must not only be in writing, and have the 
signature of the grantor, but his seal must be attached; 
not only the letters L. S. opposite his name, but an ink 
scroll, which, in Pennsylvania, is considered sufficient.* 

It is usual and customary in a deed to close the 
writing by the phrase " Witness my hand and seal," 
and from this formula it has generally been supposed 
that witnesses to the execution of the deed were indis- 
pensably necessary to its validity ; but, whilst it is best 
to have an attesting witness, or witnesses, to the sig- 
nature of the grantor, yet it is not absolutely essential. f 
The deed may be made and executed by the parties 
themselves without the knowledge of any outside par- 

* Long vs. Ramsey, I S. & R. 72. 



fLong vs. Ramsey, 1 S. & R. 72. 



farmers' rights AND DUTIES. I I 

ties, and be as valid and as binding in law as if at- 
tested by a dozen or more witnesses. If the parties 
are competent in law to make a deed, the only neces- 
sary inquiry is, have they signed and sealed the instru- 
ment of writing purporting to be the deed, as the law 
requires ? and if they have done this, then the validity 
is unquestionable. 

If the grantor be a married man, his wife must 
join with him in the deed, and the acknowledgment 
of her signature to it must be taken separate and- apart 
from her husband, and not in his presence ; and the 
certificate of the officer before whom her acknowledge- 
ment was taken, must show that the contents of the 
deed were fully made known to her, and that she did 
of her own free will and accord sign and seal the same 
for the purpose therein set forth, without any coercion 
or compulsion on part of her. husband.* 

Instances are on record in Pennsylvania where deeds 
of conveyances have been invalidated by proof of 
the fact that the husband was present when the wife's 
acknowledgment was taken. The law guards with a 
jealous eye the rights of a married woman ; and when 
her right is signed away, it must be done clearly as an 
act of her own free will and accord. 

Having, then, thoroughly examined the title, and 

*McCandless et. al. vs. Engle et. al., 51 Pa. 309. 



12 FARMERS RIGHTS AND DUTIES. 

found no flaw or discrepancy in it, and having once 
obtained a sufficient deed for the farm, the next im- 
portant thing to do is to have the deed recorded. By 
act of the Legislature, approved March 1 8, 1775, it 
was enacted " that all deeds of conveyances executed 
within the State must be recorded within a period 
of six months after their execution, otherwise to be 
considered fraudulent and void against subsequent 
purchasers and mortgagees for value, unless recorded 
before the deed under which the subsequent purchaser 
claims." "And by the same act it was provided also 
that all deeds made out of the State for lands within 
the State, should be recorded within twelve months 
after their execution." 

If, therefore, a grantor makes two conveyances to 
different parties, neither of which is recorded within 
six months, that which is first recorded has priority,* 
and where neither of two deeds to different purchas- 
ers is recorded within six months, a prior recording 
of the first conveyance is constructive notice to the 
purchaser under the second, though possession has 
been taken, and improvements made by the second 
grantee ;f and a purchaser at sheriff's sale is pro- 

* Lightner vs. Mooney, 10 Watts 407. Pennsylvania Salt Manufac- 
turing Company et al. vs. Neel, 54 Penna. 9. 

f Goundie vs. Northampton Water Company, 7 Penna. 233. 



FARMERS RIGHTS AND DUTIES. 1 3 

tected against all unrecorded conveyances, from the 
defendant in the execution, of which he has no no- 
tice.* The importance of recording deeds cannot be 
overestimated ; and to every owner of property, be he 
a farmer or not, I would say, if you have any unre- 
corded deeds among your papers, have them recorded 
at once, and the day may come when the small 
amount of money you now invest to have your deed 
put on record will be the best investment of your life. 
Fire may burn down your house, and with it the title 
deeds to your property ; whilst if you have them on 
record they will more likely be preserved, and be 
where an easy reference can always be had. 

BOUNDARY LINES. 

The next inquiry I would suggest, would be how 
far the farm extends, and what are the proper bound- 
aries. 

When a man buys a farm, he should always have a 
complete survey made of the entire tract, and a plot 
or plan furnished him, giving courses and distances, 
and marking distinctly on the lines the prominent 
points by which he may at all times know how far his 
boundary extends. He can then know where to place 

* Swartz vs. Moore, 5 S. & R. 257. Stewart vs. Freeman, 10 Har- 
ris 120. 



14 FARMERS RIGHTS AND DUTIES. 

his buildings and fences, and also when he goes be- 
yond his lines, and becomes a trespasser on the lands 
of another. Likewise, also, will he be able to tell 
when he is trespassed upon by his neighbor; and with 
this little requirement and care when he becomes a 
purchaser, he may save himself much unnecessary 
trouble in the future. 

A deed for land which has been surveyed and re- 
turned, describing the tract by the name of the war- 
rantee, passes all the land within the boundaries of 
the survey, though the purchaser did not know that 
a certain part was included.* And lands lying in one 
township may pass under a deed describing them in 
another, if there be other circumstances of description 
sufficient to identify them.f 

Where land is described by metes and bounds, all 
within the boundaries passes, though there be an ex- 
cess of the quantity mentioned in the deed. J 

Thus, if boundary lines are described as beginning 
at a certain tree or stone ; thence to a certain point ; 
thence to a particular rock or stump, and so on around 
the farm ; the deed conveys all the land inside of those 
monuments, though it may be many acres more than 



* Anderson vs. Nesbit, 2 Rawle 114. 

f Stewart vs. Shoonfelt, 13 S. & R. 360. 

j Murphy vs. Campbell, 4 Penna. 480. 



FARMERS RIGHTS AND DUTIES. 1 5 

the deed calls for ; and, on the other hand, it will in- 
clude no more, though the number of acres be less 
than stated in the deed. So if the monuments or 
points are definite and fixed, they will control the 
length of the lines to the farm, and if the sides of the 
tract be two hundred rods from point to point, the 
deed covers a tract two hundred rods square ; and a 
deficiency in the number of acres gives the purchaser no 
remedy against the seller, unless it was clearly bought 
at so much per acre. Hence, it is more import- 
ant to the purchaser to have the monuments marking 
the boundary lines definitely fixed and certain, than to 
know the number of acres in the tract ; and if the ven- 
dor pointed out the boundaries correctly before selling, 
the purchaser would have no remedy for a fraudulent 
representation of the number of acres, even though 
the intention on the part of the seller was to deceive : 
whereas fraudulent statements in the boundaries would 
release the purchaser from the sale, even though the 
farm contained as many or even more acres than the 
parties called it in making the bargain.* 

When a boundary line runs to a tree or monument, 
it ordinarily goes to the centre of it, and if a line runs 
along a road it usually passes along the middle of it ; 

*9 N. Y. 183. 



1 6 farmers' rights and duties. 

and if a farm bounds on a run or on a stream of any- 
kind, it usually extends to the middle of the stream, 
not always to the middle of the water, but to the thread 
of the stream, " usque ad filium agues." 

A grant of land on a navigable river extending to 
low-water mark, is limited by what is low-water mark 
in ordinary stages of the river, and it does not em- 
brace an island which is connected with the main land 
in seasons of extraordinary drought.* 

A deed which describes a line as running to a 
stump near the creek, and thence up the creek north 
twenty-five rods to a stone, etc., passes all the land to 
low-water mark of the creek, though not a straight 
line.f And where a grant describes the land as begin- 
ning at the mouth of a creek emptying into a naviga- 
ble river, the grantee's title commences at low-water 
mark of the river, and at the mouth of the creek at 
low-water mark ; and the rule is the same though the 
mouth of the creek has been removed by a gradual 
accretion.^ 

By a conveyance of land described as running by 
the courses of a river, the flats pass together with the 

* Stover vs. Jack, 60 Penna. 339. 

I Klingensmith vs. Gromell, 5 Watts 458. 

% Ball et al. vs. Slack et al., 2 Wharton 508. 



FARMERS RIGHTS AND DUTIES. \J 

fast land, in the absence of any express exception, or 
some unequivocal declaration, or immemorial usage 
limiting the title to the edge of the river.* So a con- 
veyance of land bounded by a street, conveys a title to 
the centre of it, and if the street be vacated the gran- 
tee has a right to use the land.f Also where a farm 
bounds on a mill-pond, or an artificial pond of any 
kind, through which a perceptible current makes its 
way, the farmer ordinarily owns to the centre of the 
current ; and on the other hand, if it be a large natural 
pond or lake, the line stops at the low-water mark on 
shore, and does not extend into the pond or lake, it 
being regarded that the public has rights in such large 
bodies of water as are useful for navigation, sailing, 
fishing, and the like. 

WHAT A DEED INCLUDES. 

The simple rule of law is that land in its legal sig- 
nification hath an indefinite extent upwards as well 
as downwards, " cujus est solum, ejus est usque ad cce- 
lum" — he who owns the land, his it is, even to the 
sky — is the maxim of the law upwards ; therefore, no 
man may erect any buildings or the like to overhang 
another's land ; and downwards, whatever is in a direct 
line between the surface of any land and the centre of 
the earth, belongs to the owner of the surface. So 

* Jones vs. Jauney, 8 W & S. 436. f Paul vs. Carver, 24 Penna. 207. 



1 8 farmers' rights and duties. 

that the word land means not only the face of the 
earth, but everything under it or over it ; and, there- 
fore, if a man grants all his lands, he grants thereby all 
his mines of metal and coal, his woods, his waters and 
his houses, as well as his fields and meadows. By 
the name of lands, therefore, which is " nomeri general- 
issimwn" every thing terrestrial will pass. So also 
the deed carries with it all the buildings belonging to 
the grantor, whether mentioned in the deed or not, 
and this includes the lumber or timber of any old 
building which has been taken down, or blown down, 
and been packed away for future use on the farm,* but 
if there be temporary buildings erected on the farm by 
a third party with the consent of the owners, the deed 
would not convey these, as such buildings are personal 
property and do not belong to land owners to convey. 
The real owner might move them off, although the 
purchaser of the farm thought he was buying all the 
buildings with the land. 

Everything fixed to the real estate by the owner of 
the land, with the intention of having it remain perma- 
nent, becomes part of the freehold, and in determining 
what are removable fixtures, the criterion is the inten- 
tion to annex, not the character of the physical annex- 
ation to the realty.f So it is with machinery which 

* Rogers et. al. vs. Gilinger et. al., 30 Penna. 185. 

fHill vs. Sewald, 53 Penna. 271. Seeger vs. Pettit, 77 Penna. 437. 



FARMERS RIGHTS AND DUTIES. 1 9 

is a constituent part of a manufactory, for which the 
building has been adapted, and without which it would 
cease to be such manufactory; it is part of the free- 
hold or realty, though not actually fastened to it.* A 
house erected on the land of another becomes part of 
the realty. f So, also, copper kettles in a brewery are 
part of the freehold.^ Burr millstones, rolls of an iron 
rolling mill, as well as the iron plates with which the 
floor is covered, and which are an indispensable part 
of it, though not manufactured for that purpose, are 
part of the realty, and pass by a sale thereof§ Light- 
ning-rods, furnaces in the cellar, window-shutters, and 
mantel-pieces attached permanently, and which could 
not be taken away without destroying the plastering, 
go with the house. Gas fixtures, such as chandeliers 
and side-brackets, are mere personal property, and do 
not pass as fixtures by a sale of the real estate to which 
they are attached. || Pumps, sinks, and watering troughs 
permanently fixed, and water pipes connected there- 
with bringing water from a distant spring, pass with 
the realty. Likewise passes with the realty a dinner- 

* Christian vs. Drips, 28 Penna. 271. 

f 2 A. L. J. 251. 

% Gray vs. Holdship, 17 S. & R. 413. 

I Pyle vs. Pennot, 2 W. & S. 390. 

|| Vaughen vs. Haldeman, }^ Penna. 522. 



20 farmers' rights and duties. 

bell attached to some building, and a cider-mill and 

press in an orchard. 

If there be any manure in the barn-yard, or in a 

compost heap on the field ready for immediate use, the 

buyer ordinarily, in the absence of any contrary agree- 
ing takes that also as belonging to the farm; though 



m< 



b"'b 



if the owner had previously sold it to another party 
and had collected it together in a heap it would be 
otherwise ; but a lessee of a farm cannot remove the 
manure made on the place while he was in occupation, 
though more be there than when he came.* 

Growing crops pass by the deed of the farm unless 
they are expressly reserved,t and where it is not in- 
tended to convey them, it should be so stated in the 
deed. But if a tenant have a lease of the farm, he will 
be entitled to his share of the way-going crop. Stand- 
ing trees pass with the realty ; also trees blown or cut 
down and still left in the woods where they fell ; but 
if cut down and piled up into cordwood ready for sale, 
the wood becomes personal property, and does not pass 
by a sale of the realty. 

WAYS OVER THE FARM. 

A way over a farm may be granted, on a special 
permission, as when the owner of land grants to an- 

*.A. L. J. Vol. 8, Page 574. 

f Wilkens vs. Vashfinder, 7 Watt. 378. 



FARMERS RIGHTS AND DUTIES. 21 

other the liberty of passing over his grounds to go to 
church, to market, to mill, or the like, in which case 
the gift or grant is particular, and is confined to the 
grantee alone. It dies with the person, and if the 
grantee leave the country he cannot assign over his 
right to another. 

A way may be also by prescription, as if all the 
inhabitants of a certain town or village, or the owner 
or occupiers of a farm, have immemorially used to cross 
such a ground for a particular purpose ; for the im- 
memorial usage presupposes an original grant, whereby 
a right of way may clearly be created. Prescription 
rests upon the presumption of a grant, but to author- 
ize such a presumption, the user must be adverse, and 
under a claim of right. 

The period of twenty years has been adopted in 
England, in analogy to the statute of limitations in 
relation to land, which bars an entry after twenty years 
adverse possession. In Pennsylvania the period of 
limitation is twenty-one years, and the same period has 
been adopted to give rise to the presumption.* So 
where a way has originally existed, it may be rebutted 
by evidence of non-user for the same period, which 
gives rise to a presumption of extinguishment ; but 
where it has been acquired expressly by grant or 

* Dyer vs. Depur, 5 Wharton 584. 



22 FARMERS' RIGHTS AND DUTIES. 

reservation, it will not be lost by non-user, unless there 
was a denial of the title or other act on the adverse 
part to quicken the owner in the assertion of his 
right* 

Twenty-one years actual occupation of land, adverse 
to a right of way, and inconsistent with it bars the 
right;! but it must not be understood that a man 
acquires a right of way over the lands of another, in 
twenty-one years, to such an extent, and with such a 
liberty, as to wander over the farm just where he has 
a mind to, and just where his pleasure and convenience 
suits him. No man can gain such a right, because 
that would be an intolerable nuisance to the farmer. 

To gain the right by twenty-one years use, he must 
have actually used the identical and particular way, or 
road, under a claim of right to do so, and not with 
your consent or permission. It is not necessary that 
any one owner should have used it twenty-one years ; 
if successive owners have unitedly used it for that 
period of time, it would be sufficient as far as time is 
concerned. But if this prescriptive right of way was 
gained only by using it for some particular purpose, as 
for hauling wood or timber from a wood-lot beyond, 
that would not authorize the person to continue to use 
it for all purposes after the wood has been taken off. 

* Rutz vs. Shire, I Rawle 218. 
f Yeagle vs. Nace, 2 Wharton 123. 



FARMERS RIGHTS AND DUTIES. 23 

A right of way may also arise by act and operation 
of law. For, if a man grants me a piece of ground in 
the middle of his field, he at the same time tacitly and 
impliedly gives me a way to come to it, and I may 
cross his land for that purpose and not be a trespasser ; 
for when the law giveth anything to one, it giveth im- 
pliedly whatsoever is necessary for enjoying the same. 

By the law of the Twelve Tables at Rome, when a 
man had the right of way over another's land, and the 
road was out of repair, he who had the right of way 
might go over any part of the land he pleased, which 
was the established rule in public, as well as in private 
ways ; and the law of England, in both cases, seems to 
correspond with the Roman. 

These ways of which we have been speaking latterly 
are termed, "ways of necessity," and are always of strict 
"necessity." 

The necessity must not be created by the party 
claiming the right of way. It never exists where a 
man can get to his property through his own land, 
and it will be to no purpose for him to set up the 
plea that a road through his neighbor's land would be a 
better one, more convenient, or less expensive; neither 
will it do for him to claim that a road through n f s 
own land would be too steep or too narrow, as the case 
might be. It is only where there is no way through 



24 FARMERS RIGHTS AND DUTIES. 

his own land, that his right of way over the land of 
another exists, and a right of way, of necessity, ex- 
tends only to a single way.* 

But, whereabouts shall be the way ? The owner of 
the land over which it exists has a right to locate it 
in the first instance, with this limitation, that it must 
be a convenient way. If he fails or refuses to locate, 
or makes an inconvenient way, or unreasonable loca- 
tion, the right devolves upon the grantee of the way. 

The right of way, of necessity, ceases with the ne- 
cessity which gave rise to it ; so that if a public road 
is opened, or the grantee purchases other lands which 
give him a way over his own land, the first right of 
way ceases. If you obstruct his way, or it beeomes 
suddenly impassable by natural causes, such as the 
overflowing of a stream, or the falling of trees in a 
storm, he would have a right to deviate to one side 
until the stream would fall, or he had an opportunity 
to remove the obstruction. 

All these rights of way are liable to become 
nuisances to the farmer, and may frequently lead to liti- 
gation, and it is important to know that it matters not 
in what manner a right of way is acquired over your 
land, you have the right, in the absence of any stipula- 
tions to the contrary, to erect suitable gates, or bars, 

* McDonald vs. Tindall, 3 Rawle 249. 



FARMERS RIGHTS AND DUTIES. 2$ 

at the entrance thereto from the highway ; and if an- 
other party leave them open, and cattle get in and 
yours get out, he is liable to you for the damage which 
ensues. 

In Pennsylvania the manner of procedure to obtain 
private ways is provided for by Act of the Legislature, 
approved June 13th, 1836; by the provision of which 
act the several Courts of Quarter Sessions have power, 
in open court, upon the petition of one or more per- 
sons for a road from their respective dwellings or plan- 
tations to a highway, or a place of necessary public 
resort, or to any private way leading to a highway, to 
direct a view to be had of the place where such a road 
is requested, and report thereof to be made at the next 
ensuing term of court. 

Tf it shall appear to the court ordering the view, by 
the report of viewers, that such road is necessary, the 
said court shall fix the width of the road, and direct 
it to be opened accordingly, and the proceedings in 
such cases shall be entered on record; and from 
thenceforth such road shall be deemed and taken to be 
a lawful private road. 

All private roads shall be opened, fenced, and kept 
in repair, by and at the expense of the person or per- 
sons respectively, at whose request the same was 
granted or laid out, and by their heirs and assigns. 



26 farmers' rights and duties. 

The damages sustained by the owner of the land 
through which any private road may pass, shall be 
estimated in the manner provided in the case of a pub- 
lic road, and shall be paid by the persons at whose 
request the road was granted or laid out ; but no road 
can be opened until the damages are paid. 

The expense of the view of a private road, as well 
as the expense of the view to assess damages sus- 
tained by the owners of the land taken, must be paid 
by the person or persons applying for the road. 

WATER RIGHTS. 

Water is a movable, wandering thing, and must of 
necessity, by the laws of nature, continue common, so 
that one can only have a temporary, transient, usufruc- 
tory property therein. Wherefore , if a body of water 
runs out of my pond into another man's, I have no 
right to reclaim it. If a stream of water flows through 
a farm, the owner has a right to use any reasonable 
quantity of it as it flows along, for watering his stock, 
irrigating his land, or supplying his house for domes- 
tic use; but he must not monopolize the whole of it; 
his neighbor's cattle must have water also. 

He may change the course of the stream in his own 
land, but he must turn it into the original channel be- 
fore it leaves his own farm. He may build fish-ponds, 
or otherwise dam up the stream, provided he does not 



FARMERS RIGHTS AND DUTIES. 2J 

force the water back on the land above him. His 
right to use the water rests upon clear and settled 
principles. Prima facie, the proprietor of each bank 
of the stream is proprietor of half of the land covered 
by the stream ; but there is no sort of property in 
water. Every proprietor has an equal right to use the 
water which flows in the stream, and consequently no 
proprietor can have the right to use the water to the 
prejudice of another proprietor. 

Every man has a right, if he desires it, to erect a 
mill on his own land, and use the water passing 
through the same, provided his mill be not so con- 
structed and employed as to injure his neighbor's. mill, 
and that after using the water, he returns it to the 
ancient channel.* But a riparian owner has a right to 
detain the water for such time as is necessary for the 
purposes of his mill, though an injury be thereby oc- 
casioned to an older mill of a lower proprietor, f He 
is entitled to the full and complete use of the water as 
it passes through his land, and if his neighbor is in- 
jured by the lawful detention of it, it is his misfortune, 
and not the fault of the proprietor who detained the 
water until it accomplished for him the intended and 
desired purpose. 

*BieseH vs. Sholl, 4 Dallas, 211. 

f Horzell vs. Sill, 12 Penna. 248. 



2.8 farmers' rights and duties. 

So, too, a riparian owner of land has the right to 
use the water for ordinary, reasonable, domestic pur- 
poses, even if it exhausted the stream during the dry 
season.* But no riparian owner has a right to pollute 
the stream, so as to render it unfit for domestic pur- 
poses.f The water power to which a riparian owner 
is entitled consists of the fall of the stream when in its 
natural state, as it passes through his land, or along 
the boundary of it, and this natural power is as much 
the subject of property as the land itself of which it is 
an accident ; and it may in the same way be occupied in 
whole, or in part, or not at all, without endangering the 
right, or restricting the mode of its enjoyment. If a 
natural stream becomes obstructed, by leaves, or rub- 
bish of any kind, you have a right to go on the land 
and remove the obstruction, so that the water will flow 
as freely as before, and the natural deposits you may 
place on the banks of the stream. 

In connection with this subject it may very properly 
be observed that water is sometimes mentioned as a 
species of land, which may seem a kind of solecism ; 
but nevertheless such is the law. I cannot bring an 
action to recover possession of a pool of water, by the 
name of water only ; but I must bring my action for 



*32 Legal Intelligencer, 355. 

f McCollum vs. Germantown Water Co., 54 Penna. 40. 



FARMERS RIGHTS AND DUTIES. 29 

the land that lies at the bottom, and must call it so 
many acres of land covered with water. I cannot 
bring my action for so many cubic feet or yards of 
water, as the case may be, or by superficial measure as 
so many acres of water, neither by general description 
as a pond, a water-course, or a rivulet ; but the ground 
covered by the water is the only thing I can take into 
account, when I institute my suit to recover posses- 
sion ; because the water may move away ere my action 
is complete, and leave me no better off than I was- be- 
fore suit, if I brought my action to recover the water 
alone. 

The rights and liabilities of farmers in surface-water, 
are very different from flowing or running streams. 
By surface-water, we understand not only the rain 
which falls and the snow which melts upon the earth, 
but water which flows out of the ground from springs 
or marshy places, and which finds its way over the 
surface, but is not gathered into a bed or current like a 
brook or rivulet. So long as it is surface-water, any 
man on whose land it is has a right to use and detain 
it for his own use and benefit, and is not bound to let 
any of it escape to the land below, unless he wishes. 

But, when once collected into a stream with a bed 
and banks, it loses its character as surface-water, and 
becomes subject to rules regulating water in flowing or 
running brooks. 



30 FARMERS RIGHTS AND DUTIES. 

I may also turn surface-water collected on my land 
on my neighbor's meadow or cornfield, even though he 
be injured by it.* If he wishes to protect himself 
he must build up some embankment, which he has a 
perfect right to do, at the edge of his land, and stop 
the flow, although he thereby makes quite a pond 
above, and injures the crops thereon. 

So a road supervisor may conduct the road-wash on 
you, even though it may carry sand into your best 
meadow. As to underground water, the law does not 
recognize any right of ownership therein, and if you 
dig down on your own land, to any depth you please, 
and perchance you cut off the supply of water to 
your neighbor's well or spring, he can have no remedy 
against you. All you must guard against, is digging 
in such a way as not to cause his land to cave into 
your excavations. 

FARM FENCES. 

It was a fundamental principle of our law, that every 
man must keep his cattle on his own land, and, if they 
strayed away into other people's grounds, he was lia- 
ble for any damage they caused by the trespass. 

At common law, it was necessary that every man 
should keep a constant watch over his animals, or if 
he did not do this, to surround his land with a fence. 

"^120 Mass. 99. 






FARMERS RIGHTS AND DUTIES. 3 1 

The first and primary object of the fence was to keep 
his own animals in, and not to keep other people's 
out ; and if any land owner kept cattle, he was bound 
to erect a fence around his entire close, whether his 
neighbor kept any cattle or not ; but, of course, the 
same rule applied to his neighbor, because if he kept 
any he must surround his farm with a fence also. 

But it was discovered that two parallel fences would 
be useless, and be attended with very considerable 
expense ; and as one and the same fence would answer 
for adjoining proprietors, it was provided by statute, 
March II, 1842, "that when any persons shall improve 
lands adjacent to each other, or when any person shall 
enclose any lands adjoining another's land already 
fenced in, so that any part of the first person's fence 
becomes the partition fence between them, in both 
these cases, the charge of such division fence, so far as 
is enclosed on both sides, shall be equally borne and 
maintained by both parties." 

By the same act, the auditors of the respective town- 
ships were made fence viewers, whose duty it was, 
within four days after notice given, to view and exam- 
ine any line fences, and to make out a certificate in 
writing, setting forth whether, in their opinion, the 
fence of one which has been already built is sufficient ; 
and, if not, what proportion of the expense of building 



32 FARMERS RIGHTS AND DUTIES. 

a new, or repairing the old fence, should be borne by 
each party ; and they should set forth the sum, if any, 
which, in their judgment, either one ought to pay to 
the other, in case he should neglect or refuse to repair 
or build his proportion of the fence — a copy of which 
certificate it was their duty to deliver to each of the 
parties ; and if any of the parties refused or failed 
within ten days after copy of the certificate of the view- 
ers had been delivered to him, to proceed to repair or 
build the fence as required, the party aggrieved had a 
right to build the fence, and bring suit against the de- 
linquent party for value of the same, before any justice 
of the peace or alderman, and recover as in action for 
work, labor, sendee rendered, and materials found. 

It follows, therefore, that if any adjoining owner 
does not keep up his half of the partition fence, and 
my cattle get through and injure his crop, he has no 
redress against me, since his own neglect was, in part 
at least, the cause of his injury. 

But at common law, if my cattle escape through my 
neighbor's defective fence, and stray upon the lands of 
another, and there injure his crop, I am liable in dam- 
ages to him, though my own half of the fence is good, 
because, so far as third persons are concerned, I am 
bound to keep my cattle on my own land ; and if I 
have any redress at all, it is against my neighbor who 



FARMERS RIGHTS AND DUTIES. 33 

failed to keep up his part of the partition fence. At 

common law, also, if I turn my cattle into the road, 

and they wander upon the lands of another, or if some 

careless person, crossing my farm on a hunting or 

fishing excursion, leave down my bars, and my cattle 

escape into the highway, and thence into my neighbor's 

grain-field, I am liable to him for damages they may 

cause. On the other hand, if you are driving your 

cattle along the road, and, without any fault of yours, 

they run upon the land of another, and you drive 

them out as soon as you can, you are not responsible 

for the damage done, because you had a right to drive 

them along the highway, and if you exercised proper 

care and attention, you could do no more. The law 

recognizes a difference between being lawfully and 

unlawfully on the highway. 

The common law is, as I have stated, that every 

man is bound to keep his cattle on his own land; and 

this would be the rule in this State, except for the acts 

of Assembly imposing duties upon land owners other 

than those of the English common law. Under the 

provision of the act of 1 700, the owner of cattle is held 

liable for all damages caused to the owner of enclosed 

land, if he fenced according to law ; and it has been 

held that unless improved lands are enclosed by a 

fence, the owner is in default, and cannot maintain 
2* 



34 FARMERS RIGHTS AND DUTIES. 

trespass for damages by roving cattle ; and the owner 
of improved lands must fence them, both to restrain 
his own cattle and to shut out the roving cattle' of his 
neighbor * 

In Pennsylvania, the law requires the fence to be at 
least five feet high, of sufficient rail, or logs, and close 
at the bottom. And to entitle a farmer to recover for 
the damage done by stray cattle, it is only necessary 
that his fence be such as men of practical knowledge 
and experience would consider sufficient to protect the 
crops from injury by orderly cattle, t 

If adjoining land owners agree not to make any 
common division fence, each is liable to the other for 
the trespass of his cattle. J But where a division fence 
has stood for twenty-one years, one of the owners can- 
not remove it without the consent of the other ; neither 
has he any ownership in the material of the part erected 
by himself; § and where one party unlawfully removes 
a portion of a partition fence, and sets it upon his own 
ground, this does not authorize the other to fence up 
to it on his neighbor's land. || Neither can one of the 
owners of adjacent unimproved land call upon the 

* Gregg vs. Gregg, 55 Penna. 227. 
730 Legal. Intel. 361. 
jMilligan vs. Wehinger, 68 Penna. 235. 
\ Stoner vs. Hunsicker, 47 Penna. 514. 
|j Smith vs. Johnston, 76 Penna. 191. 



FARMERS RIGHTS AND DUTIES. 35 

other to contribute to the charge of a division fence. 
The duty to maintain partition fences, exists only where 
both parties improve their lands. It would certainly 
not be just to make a man whose land is in woods 
and not improved, and on which he raises no crops, 
to pay expenses of maintaining and building a fence 
which can be of no possible benefit to him. Hence 
the policy of our law to compel those only who are 
benefited by the fence, to either build it or be liable 
for delinquency in not building it. 

Aside from this, however, no man is compelled to 
build or keep in repair a partition fence on the line 
between him and his neighbor. If he prefers, he can 
have his own fence; but he must put it on his own 
grounds, and maintain and keep it in repair at his own 
expense, and if cattle break through his close and 
enter upon the lands of another, he is liable; so, on 
the other hand, his neighbor can have his own fence 
also ; but he, tco, must build on his own ground, and 
will alike be liable in damages if his animals break 
over his close. 

If a division line between two farms passes through 
a wood lot, neither of the owners is obliged to erect a 
fence ; but if either owner allows his cattle to pasture 
in the woods, he must not let them pass the boundaries 
of his own land, or he will be responsible. 



36 farmers' rights and duties. 

As to fences along the line of railroads, the law is 
somewhat different. A railroad company is not bound 
to fence its road, and is not liable to owners of stray 
cattle killed thereon.* Neither is a railroad company 
liable for the value of cattle killed on its track, though 
they escaped from a properly fenced enclosure without 
the knowledge of the owner, and were killed at an 
intersection with a public highway, f And where a 
railroad company, in purchasing the right of way, binds 
itself to fence the road through the other party's land, 
but neglects to do so, if the cattle of the latter stray 
upon the track, and are killed, the owner cannot 
recover for the injury in an action of tort. J Railroad 
companies are not bound to pay for losses unless 
incurred by actual negligence ; and if cattle unlawfully 
stray upon their track, and are killed, the owner must 
suffer the consequences, because he should have kept 
his cattle on his own lot, and not allowed .them to stray 
on others' lands. 



* Railroad Company vs. Skinner, 19 Penna. 298. Watson vs. Phil- 
adelphia & Trenton Railroad, 7 Phila. 249. 

j- North Pennsylvania Railroad Company vs. Rehman, 49 Pa. 101. 
t Drake vs. Philadelphia & Erie Railroad Company, 51 Pa. 240. 



LINE AND OVERHANGING TREES. 



THE question often arises as to who owns the trees 
standing on the line between two proprietors. 
Some have supposed that the proprietor on whose land 
the largest part of the tree is situated, has the better 
right; but where a tree stands on a line between two 
farms, it -matters not what part of the tree the line 
passes through, both parties own the tree, and neither 
can cut it down or injure it in any way without being 
responsible to the other.* In such a case the roots of 
the tree extend to the soil of both proprietors, and 
derive nourishment from the lands of each, hence 
their equal right to the ownership of the tree. If it is 
blown down by the wind, or falls to the ground from 
any cause whatever, each proprietor is entitled to an 
equal share of the tree. 

If a fruit tree stands directly on the division line, 
and is a line tree, both the parties own the fruit in 
common, and neither party can take more than one- 



* 25 N. Y. 123. 
(37) 



38 farmers' rights and duties. 

half of the fruit without being responsible to the 
other.* 

But how is it as to fruit trees standing near the 
boundary line between two proprietors, where some of 
the branches overhang your neighbor's land ? In the 
States of Connecticut, Vermont, and New York, it has 
been held that if a tree stands wholly on your land, 
although some of the roots extend into the soil of 
your neighbor, and derive support and nourishment 
from his soil, yet he has no right to any of the fruit 
which hangs over the line, and if he attempts, by force, 
to prevent you from picking it up, he is liable for an 
assault and battery.f 

Tf your fruit falls upon your neighbor's lot, I think 
you have an implied license in law to go and pick it 
up, if you do no damage to his property. If he has 
his lot in grain, or planted with some valuable vegeta- 
bles which you could not prevent injuring if you 
undertook to gather up your fruit, it might be differ- 
ent ; but if you in no way damaged his premises by 
the entry thereon for the purpose of getting possession 
of your own property, I see no way in which he could 
hold you responsible in damages. J The remedy for 

*25 N. Y. 123. 

f 11 Conn. 177 ; 38 W. 105. 25 N. Y. 126; 48 N. Y. 201. 

J 113 Mass. 376; 12 Vt'273. 



LINE AND OVERHANGING TREES. 39 

your neighbor in such a case would be to cut off the 
branches of the tree on the division line between you 
and him. This is his right, and if he fails to exercise 
it, he cannot justify himself by preventing you from 
obtaining possession of your property. 

An instance is related of a lad}*, who, while standing 
on the fence picking cherries which hung over the line, 
was forbidden to do so by the adjoining owner, who 
was at work in his garden ; and in the scuffle to pre- 
vent her, she received some bruises on her arm, for 
which he had the pleasure of paying in damages the 
sum of one thousand dollars. 



THE LAW AS TO ESTRAYS. 



TN England, "estrays were such valuable animals 
-*• as were found wandering in any manor or lord- 
ship, and no man knew the owner of them;" in which 
case, the law gave them to the king, as the general 
owner and lord paramount of the soil, in recompense 
for the damages which they may have done therein. 

But, in this country, the law as to the disposition 
of estrays is somewhat different. Estrays, however, 
generally speaking, are any beasts that are by nature 
tame or reclaimable, and in which there is a valuable 
property, as sheep, swine, oxen, horses, and all cattle. 
Animals upon which the law sets no value, as a dog, 
a cat, and animals wild by nature — " ferra naturae," 
— as a bear or wolf, cannot be considered estrays. 
Swans may be considered estrays, but, with this ex- 
ception, no other species of fowls. The reason of the 
distinction in what may be termed strays, seems to be, 
that cattle and horses, sheep and swine, being of a re- 
claimable nature, the owner's property in them is 

not lost merely by their temporary escape ; and they 

(40) 



THE LAW AS TO ESTRAYS. 4 1 

also, from their intrinsic value, are a sufficient pledge 
for the expense of the person keeping them the allotted 
time for the keeping of estrays ; for he that takes an 
estray, is bound, so long as he keeps it, to find it in 
provisions, and preserve it from damage, and may not 
use it by way of labor, but is liable to an action for so 
doing. Yet he may milk a cow, or the like, for that 
tends to the preservation, and is for the benefit of the 
animal. 

The first duty of the person discovering strays upon 
his premises, is to take up the same, and give notice 
thereof to the owner of such stray, if he or she can be 
readily found ; but, if no owner can be found, then with- 
in four days to deliver to the town clerk a particular 
description, in writing, of the color, and marks, natural 
or artificial, as the case maybe, of such stray or strays; 
and for every neglect or refusal to do this, he or she 
is liable to forfeit and pay the sum of five dollars, to be 
recovered as debts of a similar amount are, by law, 
recoverable ; and it is the duty of the town clerk, sub- 
ject to a like penalty for neglect or refusal, to make 
an entry of such stray or strays in a book especially 
provided for that purpose; and if the owner of such 
stray or strays shall appear within thirty days, and 
make restitution for all damages done by such stray 
or strays, and shall pay all costs, and all reasonable 



\2 FARMERS RIGHTS AND DUTIES. 

expenses for the keeping of the same, he or she will 
be entitled to the possession of the animals. But, if 
no owner shall appear within thirty days after such 
stray or strays shall have been taken up, it shall be 
the duty of the person taking up the same, to cause an 
advertisement, particularly describing such stray or 
strays, to be published in at least one newspaper in 
the proper county, if any there be, but if otherwise, to 
publish the same by written or printed advertisements, 
which shall be put up in six or more public places in 
the county ; and if no owner shall appear, and prove 
his or her property in the said stray or strays, within 
ninety days after the publication of such advertisement 
aforesaid, the person taking up the same, shall make 
application to any justice of the peace in said township, 
who is authorized to issue his warrant to any consta- 
ble within the county, and cause him to expose the 
said stray or strays to public sale, first giving at least 
ten days' notice, in three or more public places in said 
township; and after having sold the same, to make 
return thereof to the justice, who shall, after the pay- 
ment of all costs, and reasonable charges for damages, 
and costs of keeping, pay over the surplus, if any there 
be, of such sale, to the county treasurer. But if the 
owner of such stray or strays shall appear within one 
year after such sale, and prove his, her or their prop- 



THE LAW AS TO ESTRAYS. 43 

erty to such stray or strays, the said justice, or any 
other justice in the county, shall certify the same to 
the county treasurer, who shall pay to the said owner 
the whole amount of the surplus fund; but, if no owner 
shall appear within one year, the money shall be 
applied to such purpose as other moneys in the 
treasury usually are. If any person taking up such 
strays, neglect to give notice as above required, he or 
she shall forfeit all right to recover any sum or sums 
of money for any trespass committed by the same, 
and shall deliver up the strays so detained to the 
owner thereof without any recompense whatever. 
The person taking up the stray, must comply with 
the law regulating the sale of such animals in all its 
features, else the person purchasing the strays cannot 
acquire a good and sufficient title in them.* 

It has been held, that unless a person taking up 
trespassing cattle proceeds according to the statute, he 
becomes a trespasser "ab initio "\ (from the beginning.) 
The law recognizes the right of the owner to such 
notice as would be sufficient to warn him that his 
property is in the possession of another as an estray, 
and that unless he take steps to reclaim it, it will be 
in danger of being disposed of by another. 

* Strauser vs. Kosier, 58 Penna. 496. 
f Fitzwater vs. Stout, 16 Penna. 22. 



44 FARMERS RIGHTS AND DUTIES. 

It has been held, in the State of New York, that 
the Legislature transcends the limit of its authority 
when it enacts that one citizen may take, hold and sell 
the property of another, without notice to the owner, 
or without process or warrant, as a mere penalty for a 
private trespass. 



TRESPASSING UPON THE FARM. 

4 * 'T N RESPASS, in its largest and most extensive 
* sense, signifies any transgression or offense 
against the law of nature, of society, or of the country 
in which we live, whether it relates to a man's person 
or his property." But in the limited and confined 
sense in which we are at present to consider it, it sig- 
nifies no more than an entry on another man's ground 
without a lawful authority; and in doing some damage, 
however inconsiderable, to his real property. For the 
right of property once established in lands, it follows, 
as a necessary consequence, that the right must be ex- 
clusive ; that is, the owner must have to himself the 
sole use and occupation of his soil. Every entry, 
therefore, thereon, without the owner's leave, and espe- 
cially if contrary to his express order, is a transgres- 
sion or trespass. 

The Roman laws seem to have made a direct pro- 
hibition necessary in order to constitute this injury. 
But the laws of England, justly considering that much 
inconvenience may happen to the owner before he has 

(45) 



46 farmers' rights and duties. 

an opportunity to forbid the entry, has treated every 
entry upon another's land as an injury or wrong, for 
satisfaction of which an action of trespass will lie ; but 
determines the quantum of that satisfaction by con- 
sidering how far the offense was willful, or inadvertent, 
and by estimating the actual damage sustained ; and 
the same may be said to be the law with us to-day, 
that every entry upon land in the occupation or pos- 
session of another, constitutes trespass, unless the act 
can be justified in the exercise of some legal or per- 
sonal authority or incorporeal right. 

If your land is not surrounded by an actual fence, 
the law encloses it with an imaginary enclosure, to 
pass which is to break and enter your close; and every 
trespass upon land is, in legal parlance, an injury to 
the land, although it consists merely in the act of 
walking over it, and no damage is done to the soil or 
grass. The mere act of breaking through the imagin- 
ary boundary constitutes an act of trespass, and is in 
violation of the right of property, though no actual 
damage be done ; and where a person has a special 
privilege or authority to enter upon lands to make 
seizure of goods, and he exceeds his authority by 
breaking open the outer doors of your dwelling house, 
he is a trespasser "ab initio" (from the beginning), and 
all his subsequent acts are trespasses, and his position 



TRESPASSING UPON THE FARM. 47 

is then the same as that of any stranger, acting without 
any color of authority or justification whatever. The 
same is true of a person who has lawful authority to 
enter lands for any purpose whatever, if he exceeds 
his authority by doing what he ought not to do, or 
what he had no authority to do, or if he stay longer 
than he had a right to stay. 

If one man throws stones, or rubbish, or materials 
of any kind, on the lands of another, he is a trespasser, 
and will be held responsible for the act. To pour 
water out of a pail into another man's yard, or to fix a 
spout so as to discharge water upon another's land, or 
to suffer filth to ooze through a boundary wall, and to 
run over another's close, or yard, without his leave or 
permission, is a trespass, unless a right of way over 
the adjoining close, or a right to discharge water upon 
it, or a right for the passage of waste water and refuse 
through it, has been gained. 

There is a distinction, however, between a direct, 
forcible act of trespass, and one which is merely conse- 
quential. If I erect a spout on my house, so that the 
water turned into it from my premises falls directly 
upon the land of my neighbor, this is a trespass ; but 
if I erect the spout so that the water first falls upon 
my own land, and then escapes on to the land of my 
neighbor, this is not trespass; for it is lawful for me to 



48 farmers' rights and duties. 

erect a spout on my own house, so that the water falls 
upon my own land, if I exercise ordinaiy care to 
prevent it escaping on the land of my neighbor; but 
if after the water falls from the spout, it runs upon his 
land, I cannot be accountable to him in an action of 
trespass. If I build my house with the eaves project- 
ing over the land of my neighbor, so that when the 
rain comes it falls upon his land, trespass, in this in- 
stance, will not lie against me therefor; for, although 
I built my house with the eaves -projecting over the 
land of my neighbor, yet I did not cause the rain to 
fall, nor did it fall under my direction or control. 
The injury is not direct from the act, but in conse- 
quence of it, and a result thereof; and for such injuries 
the law has provided an action on the case, but not 
trespass, as the remedy.* 

But, while there are many instances in which it has 
been held that mere trivial acts, such as the firing of a 
gnn, loaded with shot, into a field, or the passing 
through the air in a balloon over the land of another, 
breaks the close, and thereby constitutes a trespass, 
yet these are instances in which actual damage can 
rarely happen, and to which the law, owing to its 
desire to be just to all, pays but little or no attention, 
and hence we pass from this to that which is more 

*39 N. Y. 400. 6 Cush. (Mass.) 70. 






TRESPASSING UPON THE FARM. 49 

common, and which is most important to consider, 
viz., trespass by cattle and domestic animals. 

If my cattle, sheep, or any animals in which the law 
gives me a valuable property, trespass upon your land, 
I am responsible for the trespass and consequential 
damages, unless I can show that you were bound to 
fence your land and had failed to do it; and it does 
not matter whether my animals be in my own immedi- 
ate care, or in charge of a servant, or in custody of 
some stranger, I am alike responsible for any damage 
they may do. 

But if my servant, without my knowledge, takes 
my cattle and puts them on another's land, my servant 
is the trespasser, and not I ; for his willful dealing 
with the beasts without my authority gains a special 
property in them for the time, and for this purpose 
they become his beasts. But if a wife thus deals 
with her husband's cattle, the husband himself is a 
trespasser, because the wife can gain no special prop- 
erty in them as against her husband. By the common 
law, a man who turns his beasts upon the commons, 
or into an uninclosed lot of ground, is bound, at his 
peril, to see that his beasts do not stray or trespass 
upon another's land ; and, where a man is bound by 
contract or prescription to repair a fence between his 
and another's farm, and he neglects to do it, and the 
3 



50 FARMERS- RIGHTS AND DUTIES. 

beasts of another get on his land, this would be a 
good justification to an action of trespass brought by 
him. In such a case, it is lawful for me to go on my 
neighbor's land after my beasts, and drive them back 
to my own land; and this would be a good plea in jus- 
tification of the trespass, because it was made neces- 
sary on account of the default of my neighbor. 

If I drive my cattle along the highway, and you 
have open, uninclosed land adjoining the highway, and 
my beasts enter your land and eat the herbage thereof, 
and I come immediately and chase them off, you can 
have no action against me, because the chasingr was 
lawful. So, if my goods have been taken by you and 
placed on your land, I may justify my entry on your 
land for the purpose of retaking them. Where two 
persons have adjoining fields, with no hedge or fence 
between them, each must take care that his beasts do 
not trespass upon his neighbor, unless one of them 
has acquired a right or title by grant or prescription to 
have the boundary fence between his close and that 
of the adjoining proprietor maintained and repaired at 
the expense of the adjoining land owner. 

Every man must use his own land so as not to in- 
jure another; and as of common right, and by com- 
mon law, one is bound not to let his cattle trespass on 
the lands of another, so he is bound to use those 



TRESPASSING UPON THE FARM. 5 I 

things which are his, in such a way as not to hurt 
another by their use. 

If a land owner who has land bordering on a high- 
way, neglects to fence the land, and a drove of cattle 
passing along the road gets into his fields and thereby 
injures his crops, he must either drive them out him- 
self, or give reasonable time to those in charge to get 
them out. But, whilst the common law required the 
owner to keep his cattle within his close, and their in- 
trusion on another's possession was a trespass, yet it 
was provided by statute, in 1 700, that the owner of 
improved lands must fence them, both to restrain his 
cattle and shut out the roving cattle of his neighbor; 
and unless improved lands are enclosed by a fence, the 
owner is in default and cannot maintain trespass for 
damages done bv roving cattle,* and, since it is the 
duty of a land owner to fence his land, he cannot re- 
cover compensation for damage done upon it by stray 
cattle, so long as his duty is neglected. 

Another way in which farmers are trespassed upon 
is by rabbits and pigeons, and against them the law 
has provided no remedy. If my neighbor encourage 
the growth of wild rabbits and form burrows for 
them upon his land, and the rabbits stray from his 
land to mine, this is no trespass for which the breeder 

- Gregg vs. Gregg, 55 Penna. 227. 



5? FARMERS RIGHTS AND DUTIES. 

of the rabbits could be held responsible, for when 
they have left his land they are not then his rabbits 
doing damages ; being animals "ferra natures" (wild 
by nature), he has no more property in them after they 
have left his soil, than in the birds of the air, which 
may breed on one man's land and destroy the crops of 
another. The only remedy for those whose crops are 
destroyed, is in the destruction of the rabbits. Rabbits 
running at large on a common, may be killed by any 
one who desires their destruction, and the same law 
prevails with regard to pigeons. If they come upon 
my land I may kill them, but I have no remedy 
against any one for breeding them. 

Dogs, too, often do damage by intruding or trespass- 
ing on your property, and by the common law a man 
is not considered to have the same valuable property 
in a dog, as in horses and cattle ; and it has been held 
that if a man's dog goes to his neighbor's garden and 
injures his crops, no action will lie, unless the dog is 
of a peculiarly mischievous disposition, so as to be 
unfit to be at large, and this, too, known to his master. 
If the master accompanies the dog, he is a trespasser 
himself, and the damage done by the dog is conse- 
quential upon the trespass by the master. Owners of 
dogs in Scotland have recently been made liable for 
injuries done to sheep and cattle by their dogs; and 



TRESPASSING UPON THE FARM, 53 

all persons who harbor dogs on their farms are 
deemed to be the owners of the dogs, unless they can 
prove the contrary, and do show that the dog remains 
on their premises without their knowledge. 

In Pennsylvania it is provided by statute, that tres- 
pass will lie against owners of dogs for injuries com- 
mitted by them to sheep,* and it is lawful for any 
person or persons to shoot or kill any dog found or 
known to be chasing or worrying sheep, or accus- 
tomed to do so, within this commonwealth, without 
liability on the part of such person or persons to pay 
an}' damages therefor ; and the owner of such dogs is 
liable for all damages done or caused to be done by 
even* such dog or dogs. 

To justify the killing of a dog under this act, it is 
not necessary that he should have been seen actually 
worrying sheep ; it is enough that he has been ob- 
served to actually follow them with hostile intent, 
and that the owner knew of his propensity. ~r It has 
also been held that one may lawfully kill a dog found 
trespassing on his grounds and within his enclosure, 
if he cannot otherwise protect his property from its 
depredations.^ The owner of a vicious dog is bound 

•Paffw. Slack, 7 Barr 254. 

f Campbell vs. Brown, 7 Harris 359. 

% King vs. Kline, 6 Penna 31S. 



54 FARMERS RIGHTS AND DUTIES. 

to confine it,* and it is lawful to kill a dog by which 
one has been bitten, whether the dog was mad or 

not.f 

Where the dogs of several owners kill and worry 
sheep, each of them is responsible for the whole dam- 
age in a joint action. J 

In the state of New York, where two dogs of differ- 
ent sizes were found killing sheep, in the absence of 
direct proof it was recently held that the jury were 
justified in finding that the larger dog killed the 
most. Where a flock of sheep is injured by fright, the 
defendant is likewise liable for the injuries caused by 
the fright. || 

But to close the subject as to dogs, it must not be 
understood by any means that, whilst you can law- 
fully shoot or kill a dog in the act of worrying sheep, 
you can therefore poison him ; because that remedy is 
not to be resorted to under any circumstances. Poison 
is not to be thrown even to dogs, and the mere expos- 
ing of any poison for that purpose, whether the dog 
touches it or not, is in violation of the laws of this 
commonwealth. Let farmers protect themselves as 

*Earhart vs. Youngblood, 27 Penna. 331, 
-j- Bowers vs. Fitzrandolph, Add. 215. 
J Kerr vs. CTConor, 63 Penna. 341. 
|| Kerr vs. O'Conor, 63 Penna. 341. 



TRESPASSING UPON THE FARM. 55 

best they can against dogs, but I would say, never 
resort to the secret and dangerous remedy of poison- 
ing them. We have many instances in our State, 
where valuable .animals have partaken of the poison 
placed for the dogs, and considerable loss of property 
has been the result of this dangerous practice. 

Another of the most annoying forms of trespass to 
the farmer, and the last one that I shall mention, is 
that of hunting and fishing. It seems that many per- 
sons suppose, that by force of some general custom, 
they have a right to hunt and fish over another's 
ground as they please ; but this is a great mistake. 
How often it happens to the farmer, as he goes out to 
harvest his field of wheat, to find much of it trodden 
down and entirely destroyed by hunters and hunters' 
dogs passing through it and over it. How often they 
tear down his fences, open his gates, and leave down 
his bars, whereby his cattle escape to the highway and 
become trespassers, perhaps, on the land of his neigh- 
bor. Some suppose that because squirrels, rabbits 
and pigeons are not property, they have a right to 
pursue them anywhere, no matter whose possessions 
they trespass upon. 

At one time it was held in England, that it was law- 
ful to follow a fox with horses and hounds over 
another's grounds, if no more damage be done than 



56 farmers' rights and duties. 

is necessary for the destruction of the animal by such 
pursuit; but in the year 1809, a different doctrine was 
laid down by Lord Ellenborough, who said, " These 
pleasures are to be taken only when there is the con- 
sent of those who are likely to be injured by them, 
but they must be necessarily subservient to the con- 
sent of others. There may be such a public nuisance 
by a noxious animal, as may justify the running of 
him to his earth ; but then you cannot justify the 
digging for him afterward. That has been ascertained 
and settled to be the law; but even if an animal may 
be pursued with dogs, it does not follow that fifty or 
sixty people have therefore a right to follow the 
dogs and trespass on other people's lands." 

"Circular fox hunts," which, but a few years ago 
were very frequent in some parts of Pennsylvania, are 
all in violation of this law, and are only sustained and 
sanctioned by the people over whose lands the hunters 
pass by a tacit and general consent. 

Where a man has an enclosed wood lot which he 
has made inviting for wild game to come and take up 
their abode, no man has a right to enter there and de- 
stroy or kill any of his game without the owner's con- 
sent. A man would, in this instance, be as much of a 
trespasser as if he trampled down a portion of the 
growing grass, or grain. 



TRESPASSING UPON THE FARM. 57 

As to fishing, in all ordinary streams or ponds, the 
right belongs solely to those persons owning the ad- 
joining land. If the stream is navigable, the public 
have a right to boat up and down it, and fish from 
their boats, but have no right to go on shore and do 
it. In some states the law is, where a man has a pond 
of water on his farm containing ten acres or over, the 
public have a right of fishing and fowling therein, and 
may pass and repass, on foot, through any man's prop- 
erty for that end, so they trespass not on any man's 
corn or meadow. But in Pennsylvania we understand 
the law to be quite different. A pond on a man's 
farm, no matter what its size, belongs to the owner of 
the farm alone, and any passing to and from the pond 
without permission of the owner of the farm, would 
be trespass. The Susquehanna and other fresh water 
rivers of the State, in which the tide does not flow, do 
not belong to the owners of the banks, and no person 
has the exclusive right of property therein.* 

The concessions of 1681 are confined to first pur- 
chasers and persons claiming under them (ibid). In- 
dependently of the acts of 8th of February, 1804, and 
23d of February, 1809, a riparian owner has no exclu- 
sive right of fishing opposite his shore in any navi- 

k Shunk vs. Nav. Co. of Schuylkill, 14 S. & R. 71. Tinicum Fish- 
ing Co. vs. Carter, 61 Penna. 21. 



5 8 farmers' rights and duties. 

crable river.* He has the exclusive right only when 
the river is not navigable, and when not exempted by 
the concession of 1681. 



*6i Penna. 21 1. 



FARMER'S LIABILITY FOR HIS 
ANIMALS. 



FT is generally understood that if a man turns his 
-*- animals loose upon the public highway, and they 
injure either the person or the property of another 
lawfully using the way, the owner is responsible for all 
damages they may do, whether he knew they were of 
a dangerous disposition or not.* The owner of a vic- 
ious animal is bound to confine it, as respects the 
public ; but under special circumstances, the question 
whether one who knew the animal's propensities was 
guilty of culpable negligence, shall be left to a jury.f 

In one instance a man let his horse go out to feed 
in a public place where some very young children 
were playing, and some of them began to switch him, 
whereupon he turned and kicked one of them so that 
he died ; and the owner was convicted of man- 
slaughter. It might have been well for that man that 

* 39 N. Y. 400. Goodman vs. Gay, 15 Penna. 188. 
f Earhart vs. Youngblood, 2'/ Penna. 331. 

(59) 



60 farmers' rights and duties. 

the Mosaic law was not then in force ; because, under 
that law it was declared " that if the owner of an ox 
knew that it pushed with its horns, and did not keep it 
in, and it killed a man or woman, not only the ox, but 
also the owner, was put to death.''* The owner is lia- 
ble for injury done by an animal which is known to be 
fierce or dangerous, though it does not belong to the 
class of "ferriB natures" (wild by nature 1 , and where 
such an animal is the joint property of two persons, 
one of whom allows the other to have charge of it, 
both are liable to the person injured. f A corporation 
has been held liable for the keeping of a vicious dog, 
when proven as to some one having him in charge. J 

If an owner hitch a vicious horse by the sidewalk 
in the city, and a passer-by is injured by it, the owner 
is liable for the damages he may cause. 

As to the question of a farmers liability for animals 
on his own premises, the law has not been so clearly 
and expressly defined. In some of the states it has 
been held that every owner of a dangerous or vicious 
animal, known to be such, is liable for all injury he 
may do to another, even though the latter is trespass- 
ing on the former's premises. An instance in the 

* Exodus xxi. 29. 
vA. L. J. 7. 551. 
J A. M. L.J. 4, 315- 



LIABILITY FOR ANIMALS. 6 1 

State of New York is reported, where a farmer who 
was much annoyed by strolling fishermen put a sav- 
age bull into the lot along the stream. Some of his 
neighbors remonstrated with him that he ought to 
give the fishermen notice what kind of an animal he 
was, but he replied that " the fellow would give them 
notice enough himself;'' and true enough, the fellow 
did give notice when the opportune time came, and 
the result was two broken ribs, which cost the farmer 
five hundred dollars. This is an extreme case, as we 
take it, and one in which the owner knew the animal's 
dangerous propensity, and had placed him in the field 
along the stream for the very purpose of perpetrating 
an injury on some one. 

It is well understood that there are some vicious 
animals which are with great difficulty controlled at 
all; and where a farmer strives to keep them on his 
premises, and within a properly fenced enclosure, and 
gives notice to the public that a dangerous animal is 
enclosed therein, I think he can in no way be held 
responsible for any mischief they may do. 



SALES OF STOCK WITH WARRANTY. 



A SALE with warranty may be general or particu- 
^~~* lar, and limited. A general warranty does not 
extend to defects which are known to the purchaser, 
or which are open to inspection and observation, 
unless the purchaser is at the time unable to dis- 
cover them readily, and relies upon the knowledge 
and warranty of the seller. A warranty may also be 
either express or implied. It is implied, where the 
seller makes some general representation concerning 
the animal, which would lead the buyer astray ; and 
when the seller makes such declarations as are in- 
tended to deceive, and have that effect, the sale may 
be annulled on the ground of fraud. It is however, 
sometimes difficult to determine accurately what is a 
legal fraud. The general rule laid down by our courts 
is, that mere silence on the part of the seller is not 
fraud, but he must not by word or deed lead the buyer 
to believe that which is false. The usages of trade or 
custom largely regulate sales of live stock, and if they 

(62) 



SALES OF STOCK WITH WARRANTY. 6$ 

require a declaration of certain defects whenever they 
exist, the absence of such declaration is a warranty 
against such defects. It seems, according to the 
weight of authority, that a breach of warranty does 
not generally authorize the buyer to return the article 
sold, unless there be an agreement to that effect, or 
fraud. But if one buys an article of any kind for a 
special purpose known to the seller, he may certainly 
return it if unfit for that purpose, if he does so as 
soon as he ascertains the unfitness. 

If a horse is warranted sound by the seller, or as 
possessing any particular quality, as quiet to ride or 
drive, and afterwards proves unsound or devoid of the 
qualities represented, the purchaser may maintain an 
action against the seller ; but to maintain the action 
there must be an express warranty, or fraud on the 
part of the seller. High prices paid will not imply a 
warranty. No particular form of words is necessary 
to constitute the warranty. The general rule is, that 
whatever the vendor represents at the time of the sale 
is a warranty. Assertions also, as to the soundness 
of the horse, or as to his qualities, made by the vendor 
before the bargain was complete, oftentimes is a war- 
ranty to that effect. A general warranty will not ex- 
tend to guard against defects which are manifest and 
visible to the senses of the purchaser, and which re- 



64 FARMERS' RIGHTS AMD DUTIES. 

quire no skill to detect them ; as, it a horse be war- 
ranted to be perfect, and want an eye, an ear, or the 
tail. When a seller represents that the horse is sound 
in every way, yet at the same time points out to the 
purchaser some special defects, as a splint for instance, 
which was apparent and could easily be seen by the 
purchaser, there would be no warranty for this defect. 
In England, under a general warranty, roaring consti- 
tutes unsoundness, if it proceed from disease or 
organic defect ; otherwise it is not. So, also a nerved 
horse was held to be unsound. Lameness, which 
renders a horse less fit for service, is unsoundness, but 
a temporary injury from accident is not. Bone spavin 
in the hock is unsoundness, though it may not pro- 
duce lameness for years after. A warranty of sound- 
ness is broken, if the disease or defect existed at the 
time of the sale, although the existence could not 
then be detected, and did not appear until two months 
afterwards. An agent or servant employed by a 
horse-dealer to sell a horse and receive the price, has 
an implied authority to warrant, and the representa- 
tions which he makes at the time of the sale will be 
evidence against the principal. And if his master 
even gives him express directions not to warrant, yet 
if he does he is bound by it ; because the servant, 
having a general authority to sell, is in a condition to 



SALES OF STOCK WITH WARRANTY. 65 

warrant, and the buyer has a right to believe that he is 
authorized so to do by his master. But if the master 
is not a horse-dealer, and desires his servant not to 
warrant, he is not bound by any representations made 
by the servant. 

If it be one of the conditions of sale that the war- 
ranty shall be in force only for a limited period, the 
purchaser will be bound by that condition ; as, if a 
horse was sold on the condition that if he continued 
sound until a certain day, the seller's responsibility on 
the warranty should terminate, unless notice of un- 
soundness was given. 

Having thus considered what constitutes warranty 
in general, and having denned in some measure what 
warranty is, we proceed to point out some of the rem- 
edies on a breach of warranty. The proper course 
for the purchaser to pursue when he discovers the 
unsoundness, or other breach of the warranty, is to 
tender the horse to the seller, and if he refuses to re- 
ceive him, to bring an action on the warranty ; it is 
not, however, necessary, in order to maintain such 
action, to return the horse or even give notice of the 
unsoundness. " If," said Lord Loughborough, C. J., 
"a horse which is warranted sound at the time of sale 
be found to have been at that time unsound, it is not 
necessary that it should be returned to the seller. 



66 farmers' rights and duties. 

No length of time elapsed after the sale will alter the 
nature of a contract originally false. Neither is notice 
necessary to be given, though the notice not given 
will be a strong presumption against the buyer that 
the horse at the time of the sale had not the defect 
complained of." Where the plaintiff kept the horse 
eleven months, and then, finding it to be unsound, re- 
turned it to the seller, who refused to receive it, it was 
held that the plaintiff was entitled to recover on the 
warranty. But it has also been held that if the buyer 
does not offer to return the horse, he will not be en- 
titled to receive pay for his keeping. 

If the purchaser has given notice of the breach of 
warranty, he may keep the horse for a reasonable 
time, and then sell him, in which case he would be 
entitled to recover what the horse would be worth if 
sound, deducting what it sold for, or the difference of 
price between what he had paid and received for him ; 
and also compensation for keeping the horse. 

Aside from the general principles of warranty, and 
the measure of damages for their breach, the Supreme 
Court of Pennsylvania, in the case of Freyman vs. 
Knecht,* laid down what has since been the law in 
our State, where a horse is sold with warranty. 

In that case plaintiff's evidence was, that on the 
* 78 Penna. 141. 



SALES OF STOCK WITH WARRANTY. 6j 

13th of November, 1872, after some previous inter- 
views on the subject, he bought a mare of the defend- 
ant for $ 1 25. Previously, and at the time of the sale, 
the defendant said he "would warrant the mare all 
over." In examining what was the matter with one 
of her eyes, the defendant said it must have happened 
by running a corn-stalk into her eye ! After the con- 
versation about the eye, the defendant was asked by 
plaintiff if he would warrant the mare ; the defendant 
again repeated he "would warrant her all over." On 
the 25th of November, 1 872, the plaintiff discovered 
that both eyes were affected. He took the mare to 
the defendant's house and left her there; defendant 
was from home, and plaintiff told his wife that he had 
returned her. After the mare was returned, she was 
sold as a stray, the plaintiff having had notice of the 
sale. There was a great deal of evidence to show 
that the eyes of the mare were defective, and that 
some time before the trial she had become entirely 
blind. On the part of the defendant, there was evi- 
dence that when asked whether he would warrant the 
mare or not, he said, " I warrant her just while in my 
stable, and when she is out I don't." There was 
other evidence also, that the warranty was as the de- 
fendant stated, and not as certified to by the plaintiff. 
But the Court said, Justice Williams delivering the 



68 farmers' rights and duties. 

opinion of the Court, " that the purchaser had no 
right to rescind and return the animal to the vendor, 
on the ground of a breach of warranty, in the absence 
of fraud;" his only remedy was action for the breach 
of the warranty. It was clearly decided in this case 
that the horse, or its value, was the property of the 
plaintiff; and that the defendant might show the price 
for which it was sold as an estray, as evidence of value 
of the sale to the plaintiff. 

It follows, therefore, that when a horse is sold on a 
warranty, the proper course to pursue in case of its 
breach, is by action on the warranty, and not by re- 
turning the horse to the vendor and demanding a 
rescission of the contract. 

Where a horse is sold without fraud or warranty, 
unsoundness is no defence to an action for the pur- 
chase money.* And if a horse be sold as sound, with 
a certain exception, the seller is not liable if the 
animal die from the excepted cause. f So, also, if a 
seller informed the buyer that one of two horses he 
was about to sell him had a cold, but agreed to deliver 
both at the end of a fortnight sound and free from 
blemish, and at the expiration of that time the horses 
were delivered^ but one had a cough and the other a 



*PaIhammer vs. Pursel, 2 Clark 141, 
f Irwin vs. Rankin, Addison 146. 



SALES OF STOCK WITH WARRANTY. 69 

swelled leg, which was apparent at the time of the 
sale, no action of warranty would apply, because it 
did not refer to the time of the sale, but to a subse- 
quent period.* 

We have thus already seen that a warrant}' will not 
bind a man in that which is apparent, as to warrant 
that a horse has both eyes when he manifestly has but 
one. If, therefore, at the time of the sale of a horse, 
he is warranted sound in wind and limb, that- is under- 
stood to mean sound in those things which, were he 
defective, would be invisible and* unobvious to all 
observers ; and if a horse was manifestly blind, or 
obviously lame, and the purchaser examined the ani- 
mal before he bought it, and must have been aware of 
these patent defects, the vendor's representations under 
these circumstances will give him no cause of action. 
But a purchaser who relies on a warranty is not 
bound to make any particular examination of a horse 
before he buys, to ascertain whether a defect exists. 
If, relying upon the warranty, he omits to make any 
particular examination of the animal, and conse- 
quently fails to discover a defect which might have 
been ascertained by examination, he is nevertheless 
entitled to maintain an action. If a manifest defect is 
not necessarily of a permanent nature, as if a horse 
* 9 Eng. C. L. 373. 



JO FARMERS RIGHTS AND DUTIES. 

has a cough and running at the nose, and the vendor 
says it is merely a cold, and that the horse will be 
sound and well in a given time, and the purchaser 
buys in reliance upon the truth of the representation, 
the vendor will be responsible in damages, if the horse 
continues unsound and permanently diseased.* 

As to proof of warranties, it has been held that a 
warranty made orally, on the completion of a written 
contract of sale, cannot be introduced as a part of the 
contract, if the contract itself is silent as to the fact of 
the warranty; as it is a rule of law that oral evidence 
shall not be given to superadd any term to a written 
agreement, for it would be setting aside all written 
contracts, and rendering them of no effect. But, 
whilst a warranty cannot be superadded to a written 
contract by oral testament, yet, if it can be shown that 
the contract was induced by an oral warranty, made 
by one of the two contracting parties, which was false, 
and the party making it knew it, and was made for the 
purpose of throwing the other contracting party off 
his guard, and fraudulently obtaining his consent to 
the bargain, this is a circumstance altogether collateral 
to the contract, and the proof of it by oral testimony 
does not in an}* wise infringe upon the preceding rule 
of law. The oral evidence cannot be received to show 
that the contract itself was different from that authen- 

*Add. on Contracts, 628. 



SALES OF STOCK WITH WARRANTY. J I 

ticated by the written instrument ; but it is admissible 
to show that the assent of the part}' to the contract 
was obtained under false pretenses ; and that the con- 
tract is bottomed in fraud, and therefore has no legal 
existence. " Ex dob noil oritcr contractus y The oral 
evidence is offered, not to affect the terms of the con- 
tract itself, but to destroy the remedy by way of 
action upon it ; and where representations which may 
amount to a warranty are contained in letters which 
constitute a contract of sale, evidence is admissible of 
the surrounding circumstances, for the purpose of 
showing that no warranty was contemplated by the 
parties. The construction to be put upon contracts of 
warranty will be regulated by the surrounding circum- 
stances of each particular case, which must be re- 
garded in order that the true meaning and intention 
of the parties may be discovered. Where the plain- 
tiff exchanged a watch with the defendant for a pair 
of candle-sticks warranted to be silver, which turned 
out to be base metal, it was held that the circumstan- 
ces which entered into exchange of the articles, tend- 
ing to show knowledge of the quality of the candle- 
sticks, on the part of the defendant, was proper matter 
for the consideration of the jury; and so it may be said, 
as a general rule of law, to be the same with reference 
to all cases of general or special warranty of stock. 



FIRES. 



TF a hunter, carelessly passing along through your 
-^ woods, sets fire to the leaves or brush, and the 
flames spread through your fields, and perchance run 
along a fence to your hay-stacks, or barn, he is re- 
sponsible for the whole loss, even though he did 
everything in his power afterwards to stay the pro- 
gress of the flames. It has long since been held as a 
rule of law that he who wrongfully sets in operation a 
dangerous instrument, must take all the consequences 
directly caused thereby. And it would not matter in 
such a case whether the fire ran along the ground, or 
whether sparks were blown through the air some dis- 
tance and then set fire to the property; he would in 
like manner be responsible.* » 

But as every farmer must necessarily burn the 
brush, old logs and stumps on his own land to get 
them out of his way, which he has a legal right to do, 
yet he must burn them at the proper time and in a 

* 107 Mass. 494. 
(72) 



FIRES. 73 

proper manner, if he would not be responsible for any 
loss that may occur to his neighbor's property. His 
liability in such cases, is his carelessness, either in the 
manner or time of setting the fire, or in watching it 
afterwards. If after a farmer has set fire to his brush 
or logs, a sudden wind rises, or by some other cause, 
not by negligence or carelessness on his part, the fire 
is communicated to his neighbor's property, he is not 
responsible. 

Negligence, however, will not always make you 
liable for the spread of a fire, unless you originally 
kindled it intentionally. Suppose your barn was to 
take fire through your carelessness with a lantern, or 
by some one passing through your stable with a 
lighted cigar, and your neighbor's property is con- 
sumed, you are not bound to pay for it. The law 
seems to consider that you have suffered enough in 
the loss of your own property, without being liable for 
your neighbor's loss.* If your barn is struck by 
lightning, or your hay-stack ignites by spontaneous 
combustion, without any fault on your part, and the 
flames spread to the adjoining property, you cannot be 
held accountable to your neighbor for his loss.f It 

* Penn'a. R. R. Co. vs. Kerr, 62 Penna. 353; also, I Blackstone's 
Com. 431. 

fnQ. B. 347. 
4 



74 FARMERS RIGHTS AND DUTIES. 

might, however, be different if you were careless and 
indifferent about putting out the fire, if you had the 
means, and it was in your power to do it. 

As to the responsibility of railroad companies fen- 
fire caused by sparks from their engines, the law in 
our State does not differ materially from that relating 
to individuals. 

"A railroad company is not liable for buildings de- 
stroyed by fire caused by sparks from its locomotive, 
unless there be proof of negligence."* "But a railroad 
company is responsible for fires caused by the careless 
emission of sparks in the running of its engines. f" 
" Where there is no direct proof that a building near a 
railroad is set on fire by sparks from a locomotive, 
whether it was so set on fire depends on circum- 
stances. J" Where a barn quite near the track of a 
railroad was negligently burned by sparks from a loco- 
motive, it was held " not evidence of contributory neg- 
ligence that the owner suffered the roof to be in such 
a condition that it was more liable to take fire than 
if it had a secure and safe roof." [Ibid) 

The owner of a property near a raiiroad must take 
all risks of a proper and careful use of the road. [Ibid.) 

* Phila. & Reading R. R. Co. vs. Yierger et al., 73 Penna. 121. 

f Huyett vs. Phila. & Reading R. R. Co., 23 Penna. 373. 

I Phila. & Reading R. R. Co. vs. Hendrickson, 80 Penna, J82. 



FIRES. 75 

"And where a railroad company use the most ap- 
proved spark-arresters and proper care and vigilance 
in running their engines, an adjacent land owner has 
no remedy for injury to his property by fire thrown 
from a locomotive." {Ibid) 

" In order to hold a landholder for contributory neg- 
ligence where injury is done to his property by fire 
from an engine on a railroad, he must have done some 
act, or omitted some duty, which is the proximate 
cause of the injury, concurring with the negligence 'of 
the railroad company." [Ibid.) " Farmers may cultivate 
and use their farms and improvements as is customary 
amongst farmers, and are not bound to exercise un- 
usual means to guard against the negligence of rail- 
road companies. (Ibid.) " 

" Where an engine on a railroad negligently set fire 
to a house, and the fire from the house communicated 
to another at some distance from it, which was con- 
sumed with all its contents, it was held that the rail- 
road company was not liable for damages for the last 
building and its contents.* Every one has to take the 
risk of the vicissitudes of organized society, and the 
person committing the first act of negligence is not 
liable for all its consequences." (Ibid). 

* Penna. R. R. Co. vs. Kerr, 62 Penna. 353. 



y6 farmers' rights and duties. 

Thus it will be seen that railroad companies, like 
individuals, are liable for loss occasioned by fire from 
their engines, when it is the result of negligence or 
carelessness ; but to hold that the act of negligence 
which destroys one building destroys another in prox- 
imity to it, would be to disregard the order of 
sequences entirely, and would hold good if a row of 
buildings a mile long had been destroyed. Indemnity 
cannot reach all these results, although parties often 
suffer who are innocent of blame. This is one of the 
vicissitudes of organized society, and every one in 
society takes the risk of these vicissitudes. Wilful- 
ness itself cannot be reached by the curt arm of the 
law for all the consequences of consequences, and 
some sufferers necessarily remain without compensa- 
tion. There must be a limit somewhere. It is an 
occurrence undoubtedly frequent that by the careless 
use of matches houses are set on fire. One adjoining 
is fired by the first, a third by the second, and so on it 
might be for the length of a square or more. It is not 
the result of our examination of the law that the first 
owner has been held liable to answer for all these con- 
sequences. The second and third houses in the case 
supposed, were not burned by the action of the match, 
and who can tell how many agencies might have con- 
tributed to produce the result. Therefore it would 



FIRES. 77 

even be illogical to hold the match chargeable as the 
cause of what it did not do, and might not have done. 
The text-books, and I think the authorities, agree that 
to the immediate cause alone is to be attributed the 
result of the injury complained of in such circum- 
stances. 



RIGHTS IN THE ROAD. 



IN a former chapter it appeared that where a farm is 
-*- bounded by, on, or upon a road, it usually extends 
to the middle of the roadway ; and this being the case 
ordinarily and naturally, the farmer owns the soil of 
one-half the road, and would be entitled to use the 
grass, trees, stones, gravel or sand, or anything of 
value to him, either on the land or beneath the sur- 
face ; subject however, to the superior rights of the 
public to travel over the road, and that of the road 
supervisor to use such materials as were necessary for 
the repair of the road ; and these materials the road 
supervisor would have the right to use elsewhere on 
the road, but has no right to appropriate them, to his 
own private use; no other person has a right to feed 
his cattle there, or cut the grass or trees, much less 
deposit old wood, rubbish, or other things thereon.* 

The Supreme Court of Pennsylvania by a unani- 
mous opinion said : No principle is more familiar or 

*A. Kirk Lewis et al. vs. Thomas Jones et al., I Penna. 336. 

(78) 



RIGHTS IN THE ROAD. 79 

better settled, than that the right to the soil of a high- 
way resides in the proprietor of the land over which it 
has been laid, and that the citizen has no more than a 
license to pass along it with carriages and cattle ; an 
abuse of which, like the abuse of any other license 
given, not by the party, but by the law, makes him a 
trespasser against the proprietor from the beginning. 
If a wagoner were at liberty to pile fence rails on a 
highway, he would equally be at liberty to deposit 
anything offensive to a family dwelling at the wayside; 
or he might make the spot a resting-place before their 
door for days or for months. The State has dedicated 
her highways to no such uses, and the citizen has a 
right to enjoy them only according to the intent.* 

Where a public road passes over land, the public re- 
quires but an easement ; the right to the soil remains 
unchanged, and an action of trover lies for timber cut 
by a stranger on the land of the proprietor, though 
within the lines of the public road, laid out and ap- 
proved by the Court, f If a drove of cattle or pigs be 
stopped in front of your door, or root up your soil, the 
owner is responsible to you at law, as much as though 
they did the same things inside the fence. No person 
has a right to hitch a horse to your tree at the side- 

* A. Kirk Lewis et al., vs. Thomas Jones et al., I Barr 336. 
f Sanderson vs. Haversticfc, 8 Barr 294. 



80 farmers' rights and duties. 

walk without being liable if he gnaws the bark or in 
any way injures the tree, and you have the right to 
untie the horse and remove him to some safe place. 
Xo person has a right to stand in front of your door 
and whittle your fence, throw stones at your dog, or 
use abusive and profane language, without being 
liable for trespassing on your land. All persons have 
a right to pass and repass in an orderly manner on the 
road, and to use it for the purpose intended by the 
law, but not to abuse it. 

On the other hand, the farmer cannot use the soil 
for any purpose which interferes with the use of the 
road by the public for travel. He cannot put any 
buildings on it, or his wagons, or his wood, or any- 
thing else which interferes with the free use of the 
road ; and if the road supervisor orders him to take 
them away if he places them on it, he would be 
bound to do it. If he leave his wagon or his carts on 
the highway, and some traveler runs into them in the 
night, and his property is injured thereby, he cannot 
recover for the damages the traveler may do. He 
may even be indicted for obstructing the highway. 
But as he owns the soil, if the road is declared vacant, 
or is located elsewhere, the land reverts to him, and he 
may then build his fence up to the center of it, and 
use the road as part of his farm. 



RIGHTS IN THE ROAD. 8 1 

As to the law of the road, a traveler may use the 
middle or either side of the public road, at his pleas- 
ure, without being bound to turn out for another 
traveling in the same direction, provided there be con- 
venient room to pass on the one hand or the other; 
and a mail coach is on a footing with other vehicles in 
this respect, though protected from wilful or wanton 
obstruction or delay.* 

But a horseman meeting a light wagon with a heavy 
draft is bound to turn out if there be sufficient room 
to pass.f By the general custom of this country, it is 
the duty of persons traveling in wagons or other 
vehicles, meeting each other in the public road, to 
pass on the right hand side of the road. But this is 
not an infallible rule. It admits of exceptions. Where 
one on horseback or in a light buggy meets a loaded 
wagon, and it would be difficult or inconvenient for 
the loaded team to turn out and pass to the right, it is 
altogether proper and usual for the person on horse- 
back or in a light buggy to pass to the left hand side 
of the road. The custom which requires persons 
meeting on a public road to pass to the right, applies 
to, and is intended to regulate, the duty and conduct 

* Bolton vs. Calder & Wilson, I Watts 360. 
I Beach vs. Parmeter, 23 Penna. 196. 



82 FARMERS' RIGHTS AND DUTIES. 

of those traveling on the road, as between themselves.* 
A horseman meeting a city railway car must turn out 
soon enough to allow the car to pass without impedi- 
ment, f 

*Grier vs. Sampson, 27 Penna. 183. 

f Jatho vs. Passenger Railway Company, 4 Phila. 24. 



LANDLORD AND TENANT. 



r I ^HE principal covenant on the part of the landlord 
•*- is, that for the time included within the term for 
which the premises are leased, the tenant shall have 
the quiet enjoyment and possession of the premises. 
The law imposes this covenant upon the landlord from 
the nature of the relation of the parties to each other. 
It is to be assumed against a landlord that he owns 
the land leased ; that, therefore, he has the right and 
power by lease to assign the possession for the term ; 
and an engagement to this effect on his part is always 
implied. Then, as a necessary result from this cove- 
nant, the right to demand rents depends upon the un- 
disturbed possession of the tenant, the engagement on 
his part being in consideration of his having the use 
of the premises ; if that fails, the consideration for the 
contract is gone and it cannot be enforced.* A mere 
disturbance of the tenant's possession by a trespasser 
does not, however, discharge him from the payment 

* Taylor's Landlord and Tenant, Sec. 304. 
(«3) 



84 farmers' rights and duties. 

of rent ; that is not breaking the covenant by the 
landlord, because the injury is one for which he is not 
responsible. He simply covenants that the land is 
his, and that he has a right to lease it. A stranger 
who is a trespasser may oust the tenant, and he still be 
held to pay the rent ; but if the landlord disturbs the 
possession in the least, he does so at his peril, and if 
he wilfully enter upon and expel the tenant, actually 
or constructively, from a part of the demised premises 
even, the rule has been held to be that the whole rent 
is suspended during the term, though the tenant con- 
tinue in possession of the residue.* And where a 
lessee is evicted of a part of the demised premises, by 
one claiming under a title superior to that of the 
lessor, he is discharged from the payment of so much 
of the rent only as is properly chargeable to the part 
of the premises from which he was evicted. But 
where a tenant is evicted, though from a part of the 
demised premises only, by the wrongful act of the 
landlord, he is discharged from the payment of the 
whole rent, f But to constitute an eviction, there 
must be more than a mere trespass by the landlord. 
There must be something of a grave and permanent 
character done by the landlord, with the intention of 

* Johnston vs. Oppenheimer, 12 Abb. N. Y. 
f Taylor's Landlord and Tenant, Sec. 378. 



LANDLORD AND TENANT. 85 

depriving the tenant of the enjoyment of the premises; 
the question of eviction or no eviction depending 
upon the circumstances, and being a matter for a jury 
to decide. 

Another covenant on the part of the landlord which 
the law implies, is that the demised premises are free 
from incumbrances, otherwise the tenant might be 
deprived of his term by the act of the lessor at any 
time. It has been held that even without being 
actually ousted by the holder of the incumbrance, the 
tenant may maintain an action for breach of this cove- 
nant, the mere liability or chance that he may be dis- 
turbed being a technical breach of the covenant ; but 
no more than nominal damages could be recovered.* 

Another agreement incident to the landlord, is the 
obligation to pay the taxes and lawful assessments 
upon the premises during the term ; these the land- 
lord must keep paid, because the claim of the law 
being paramount, the tenant cannot otherwise be pro- 
tected in his possession ; and if the tenant pay the 
taxes, he may deduct the amount paid from rent due, 
the rule in such matters being that where atenant has 
been compelled to pay out money to protect his pos- 
session, he is considered as having been authorized by 
the landlord so to apply his rent, whether it was due 
or to become due. 

* Taylor's Landlord and Tenant, Sec. 318-22. 



86 farmers' rights and duties. 

Of course, it will be understood that the covenants 
mentioned as implied by law, may be waived or 
changed by the parties. The law makes the contract 
for the parties where they have not done it for them- 
selves, and it is not unusual to insert in the lease a 
covenant on the part of the tenant to pay the taxes ; 
but where lands are demised to a tenant for life, there 
need be no mention made of the payment of taxes, it 
being long since recognized as the law that he is 
bound for all taxes. 

As to repairs, the common law rule is that the 
expense of them must be borne by the tenant, and no 
covenant is implied which will compel the landlord to 
become liable for them ; and in some States it has 
been held that even if the buildings burn down, the 
rent for them may be collected by the landlord from 
the tenant, and if they were insured in favor of the 
landlord, the tenant cannot compel him to appropriate 
the insurance money to rebuilding; it being considered 
that the tenant takes the premises for better and for 
worse, and that a landlord is in no case bound to re- 
pair, unless by force of an express covenant or contract. 

In New York, the statute has changed the common 
law, and made the rule that the landlord must keep 
the premises in repair. In Pennsylvania, the tenant is 
liable for repairs in the absence of any stipulation in 



LANDLORD AND TENANT. 87 

the lease.* But it must be understood that the repairs 
for which the tenant is liable are only ordinary repairs, 
and such alone as will keep the premises in the same 
condition in which they were when he made the con- 
tract. And if a tenant choose to put permanent 
repairs on the leased property without the consent of 
the landlord, he cannot charge them in an account 
with him.f But, as in other cases, the parties may 
make such contracts as they please, and change the 
rule to suit themselves. Where the landlord assumes 
the cost of keeping the buildings in repair, the tenant 
is justified in deducting from the rent due so much as 
he has been compelled to pay out for repairs such as 
the landlord has agreed to make ; this he may do, 
however, only upon due notice to the landlord of the 
necessity, accompanied with the demand that he com- 
ply with his engagement, for the covenant is not that 
he will permit the tenant to make the repairs and 
reserve the cost from the rent, but that he, the land- 
lord, will do the work, or cause it to be done ; hence, 
default must be shown before the tenant can be sus- 
tained in making and charging to his landlord the 
requisite disbursement. 

* Long vs. Fitzsimmons, 1 W. and S. 530. Hitner vs. Ege, 23 
Penna. 305. Kline vs. Jacobs, 68 Penna. 57. 
f Hitner vs. Ege, 11 Harris 305. 



88 farmers' rights and duties. 

As to what may be considered ordinary repairs, and 
which the tenant would be bound to make under his 
implied covenant, depends much upon the usages of 
the vicinity. He is bound to treat the farm in a 
husband-like manner, and make such repairs as the law 
imposes on him under the implied covenant. 

The duty of the tenant is to prevent waste or 
destruction of the houses, lands, or tenements of the 
landlord. Waste may be incurred in man}- ways, in 
respect to soil, as well as to buildings, trees, fences, or 
even live stock, because the law regards as waste every 
act or omission which does a permanent injury to the 
inheritance; and, even in the matter of repairs, if the 
tenant thereby has added to the permanent value of 
the premises, to remove them is waste. Destruction 
of farm buildings, fences and other structures, by the 
elements, becomes waste, when it might have been 
avoided by the exercise of an ordinary, reasonable 
exercise of care and precaution ; and so loss by fire is 
waste when accruing through the tenant's carelessness. 
But if a house be destroyed by a tempest, fire from 
lightning, or the like, which is an act of providence, it 
is not waste, for "Actus dei nemini facit injuriam," yet 
it becomes so if the damage done by the tempest was 
occasioned by the tenant's previous neglect to repair, 
or if he does not proceed forthwith to repair.* Waste 

* Taylor vs. land and T-, sec. 347. 



LANDLORD AND TENANT. 89 

may be of two kinds : Voluntary, which consists in 
doing something which the tenant is prohibited by law 
from doing, and permissive, which allows something 
to happen which he is bound by law to prevent. The 
former is an offense of commission, the latter of 
omission.* 

In the matter of cutting wood, it is not necessarily 
waste for the tenant so to do. Manifestly it is waste 
to cut firewood from the trees of an orchard or from 
timber trees, which, from their position, have an es- 
pecial value to the premises ; while to cut trees which 
are not timber, or are not ornamental trees about a 
house or garden, or are not fruit trees growing in the 
orchard, will not amount to waste ; and local custom 
and particular circumstances must be taken into ac- 
count in determining whether the cutting of any given 
wood is waste or not. 

It has, however, been held by the superior courts 
in nearly all of the States, that the tenant has the right 
to cut and haul for his own use as much wood as is 
necessary for domestic use, and for heating the apart- 
ments of his house. 

The tenant also, under a farming lease, is bound to 
protect the property 7 from injury to the extent of his 
ability; but he is not an insurer against casualities. 

* McGregor vs. Brown, 10 N. Y. 114. 



90 FARMERS RIGHTS AND DUTIES. 

The law implies a covenant on his part to exercise 
over the property leased, the same care which a pru- 
dent person would ordinarily manifest in that of his 
own property. The landlord may look to his tenant 
to make good all injuries to the premises while in 
possession of the tenant, regardless of whether caused 
by the act or negligence of the lessee, or by a stranger. 
While the possession of the property rests with the 
tenant, the landlord, being deprived of his power to 
protect it, may rely upon the covenant against waste. 
The tenant has a right to remove fixtures which he 
placed upon the premises of the landlord if he has 
not permanently affixed them to the realty. The rules 
concerning fixtures are generally construed with the 
greatest liberality in favor of tenants, while between 
vendor and vendee, heir and executor, mortgagor and 
mortgagee, the strictest construction obtains. Whether 
fixtures are personalty or realty, is a question of 
intention and not of physical annexation. Under the 
earlier decisions, physical annexation was undoubtedly 
the test, but this doctrine no longer prevails. The 
true rule to be deduced from the authorities is, that it 
is not the character of the physical connection with 
realty which constitutes the criterion of annexation, 
but it is the intention to annex. 

Where a tenant puts in fixtures or conveniences for 



LANDLORD AND TENANT. 9 1 

his own comfort, the law raises no presumption that he 
intended them for permanent improvements, to be left 
for the benefit of the landlord, and, as a general rule, 
he will be entitled to remove them during the term.* 

A wooden building standing on blocks and rollers 
so that it could be removed without disturbing the 
freehold, and which was built for the purpose of 
removal, if necessary, may be regarded as a movable 
fixture and the personal property of the tenant. 

A tenant, also, by the custom of Pennsylvania, is 
entitled to the way-going crop, and may maintain an 
action of trespass against a wrong-doer for cutting it, 
though he has surrendered possession to his landlord.f 
Also, a lessee of land from year to year, for agricultural 
purposes, is entitled to the way-going crop, without 
regard to the question of bad husbandry ; and the 
demise is presumed to be from year to year, unless the 
contrary be shown. { So, too, the custom is, that the 
way-going crop is confined to fall grain, sown in the 
autumn before the expiration of the lease and cut after 
it determines, it being held that the tenant cannot sow 
the land with spring grain and cut it after the term is 
out.§ The way-going crop to which the tenant is 

* Voorhies vs. Freeman, 2 W. and S. 116. 
fStultz vs. Dickey, 5. Binn 285. 
J Clark vs. Harvey, 54 Penna. 142. 
\ Demi vs. Bossier, 1. P. and W. 224, 



92 FARMERS RIGHTS AND DUTIES. 

entitled, includes as well the straw as the grain.* The 
lease in this latter respect is governed by the ordinary 
rules of construction, and not by the custom of the 
country.f A lessee of land incumbered by a judg- 
ment, which is paramount to the lease, is entitled to 
the way-going crop in preference to a purchaser at 
sheriff's sale under the judgment.^ But where a share 
of the grain is reserved in the way of rent, the land- 
lord's interest in the growing crop passes by an 
Orphans' Court sale of the land.§ And where rent is 
reserved in a part of the product of the land, after being 
harvested, if the lessor die whilst the grain is growing, 
and before the time of delivery, it passes to his heirs 
and not to his executors. || It has been held in Penn- 
sylvania, and it is still the law, that a mere cropper is 
not a tenant ; and on a sale of the land by the sheriff is 
not entitled to the emblements. If And any one hired 
to work land and to receive part of the produce is in 
legal parlance a cropper and not a tenant [Ibid) ; and 
the rent of a cropper only becomes due when the crop 

* Craig vs. Dale, I W, and S. 509. 
-j- Iddings vs. Nagle, 2 W. and S. 22. 
JBittinger vs. Baker, 29 Penna. 66. 
\ Burns vs. Cooper, 31 Penna. 426. 
|| Cobel vs. Cobel, 8 Penna. 342. 
\ Adams vs. McKesson, 53 Penna. 81. 



LANDLORD AND TENANT. 93 

is harvested.* Also where the rent is reserved in a 
share of the grain to be delivered in the bushel at the 
mill, no title thereto vests in the lessor until delivery. t 
As to the payment of rent, the general principle 
prevails, that where a portion of the profits is reserved 
as rent, the tenant is accountable for what he ought to 
have made;| and where half of the crop is reserved by 
way of rent, the landlord is entitled to half of the 
straw ;§ but in the payment of rent, as in all other 
matters between landlord and tenant, there may be a 
waiver of the rights of either party, and contracts made 
as between themselves, which will be as binding as 
though entered into for any other purpose whatever. 
As to notice to quit, it has been held that where the 
tenant holds under a parol lease from year to year, 
a notice to quit must be given three months before the 
expiration of the current year;|| and if a lease be made 
for a year, and the tenant be permitted to hold over 
from year to year, a notice to quit at the expiration of 
three months, given in the first month of a new year, 
is illegal, and the tenant has a right to hold for that 

* Larnberton vs. Stouffer, 55 Penna. 2S4. 
j Ream vs. Harnish, 45 Penna. 376. 
% Long vs. Fkzsimmons, 1 W. and S. 530. 
\ Rank vs. Rank, 5 Penna. 211. 
|| Brown vs. Van Horn, 1 Binn. 334. 



94 FARMERS RIGHTS AND DUTIES. 

year.* If the landlord desires to re-possess his 
premises, demised to his tenant for a term of years, he 
must give at least three months notice before the 
expiration of his term that it is his intention so to do, 
else he cannot in any way or by any means oust the 
tenant for another full year. If the current year begins 
to run from the first day of April of any year, he must 
give notice to the tenant not later than the last day of 
December prior to that time. No particular form of 
notice is required, neither need it be in writing, but the 
tenant must have such actual notice at least three 
months before the expiration of his term, as to fully 
warn him that the landlord desires the termination of 
the lease, and that he will be required to surrender to 
him the peaceable possession of his premises.f Where 
a tenant rents for a specific year, or from quarter to 
quarter, with the express stipulation that the lease 
terminates at the end of the year, or at the expiration 
of a certain quarter, no notice to quit need be given. 
He will be bound to surrender the possession of the 
property to the landlord, in this instance, when the 
term expires according to the contract. 

* Fahnestock vs. Faustenaur, 5 S. and R. 174. 
■f Tham vs. Hamberg, 2 Brewst. 528. 



NUISANCE 



U A NUISANCE is anything that worketh hurt, in- 
-^~*- convenience, or damage." Nuisances are of 
two kinds : Public or common nuisances, which affect 
the public, and are an annoyance to all good citizens, 
and private nuisances, which may be defined as "any- 
thing done to the hurt or annoyance of the lands, tene- 
ments, or hereditaments of another." If a man builds 
a house so close to mine that his roof overhangs my 
roof, and throws the water off his roof upon mine, this 
is a nuisance for which an action will lie. Likewise, 
to erect a house or other building so near to mine 
that it obstructs my ancient lights and windows, is a 
nuisance of a similar nature. Also, if a person keep 
his hogs, or other noisome animals, so near the house 
of another that their stench incommodes him, and 
makes the air unwholesome, this is an injurious 
nuisance, as it tends to deprive him of the use and 
benefit of his house. A like injury is where one of 
my neighbors sets up and exercises an offensive trade, 
as a tanner's shop, a tallow chandler's, or the like ; for, 

(95) 



g6 farmers' rights and duties. 

though these are lawful and necessary trades, yet they 
should be exercised in remote places. 

It is also a nuisance to erect a smelting-house for 
lead so near the land of another, that the vapor and 
smoke kill his corn and grass, and damage his cattle 
thereon. It is a nuisance to stop or divert water from 
another's meadow or mill, to corrupt or poison a 
water-course by erecting a dye-house or a lime-pit for 
the use of trade in the upper part of a stream, or, in 
short, to do any act thereon that in its consequences 
must necessarily tend to the prejudice of one's neigh- 
bor. So closely does the law endeavor to enforce the 
Gospel rule of doing unto others as we would have 
others do to us. 

In legal parlance, also, a nuisance may be said to be 
" any obstruction of, or injury to, the legal rights of 
another, resulting from the wrongful or unlawful 
enjoyment by one of his own property, real or per- 
sonal, or from his own unlawful or indecent conduct."* 
It is a nuisance to erect a privy or hog-sty, or make a 
cess-pool, the filth of which percolates through the 
soil and contaminates the water of his neighbor's 
well or spring; or to burn lime or bricks, Or erect a 
glass-house or brew-house so near to a dwelling-house 
that the smoke and smell thereof enter the house and 

* Wood on Nuisances, pp. I and 2. 



NUISANCE. 97 

render it unfit for habitation ; or to set up a lime-pit 
for cleaning skins and letting the drainage thereof run 
into a water-course or pond and corrupt the water, and 
thereby injure the fish or fishing. 

Every occupier of property is bound to prevent the 
filth from his drains or cess-pools from filtering 
through the ground into his neighbor's house or land. 
It is a charge or duty laid on him of common right, 
for neglect of which he is answerable. Every grantee, 
also, of an artificial drain or water-course, con- 
structed for the passage of water through the land of 
the grantor, is bound to maintain and repair the drain 
or water-course, and keep it in proper order ; and if he 
neglects so to do, and the water-course becomes 
obstructed, so that the grantee's surplus water floods 
the land of the grantor, the latter is entitled to com- 
pensation in damages for the nuisance. The rule is, 
that if a person interferes with the natural flow and 
condition of a stream, or with the natural condition of 
the earth, except so far as is essential for its use for 
the purposes to which it is ordinarily devoted, whereby 
damage results to others, such use of his premises, 
and interference with the natural order of things, is an 
actionable nuisance. For injuries resulting from nat- 
ural causes a person is never liable, however extensive 
or disastrous they may be, nor with however little 
5 



98 farmers' rights and duties. 

labor or expense he could remove the cause and pre- 
vent the injury. This principle was clearly decided in 
the State of New York, in case of Woodruff against 
Fisher.* In that case the defendant was the owner of 
a tract of swamp land adjoining the plaintiff's farm, 
upon which a large body of water was collected, which 
remained stagnant, and the evaporations from which 
were exceedingly injurious to the neighborhood. The 
swamp could easily be drained, and at a small expense, 
but the defendant neglected and refused to drain it. 
The plaintiff brought an action against him for injuries 
resulting to him from the miasmatic emissions from 
the swamp. The court held that an action could not 
be predicated of a nuisance that resulted from natural 
causes purely, no matter how serious or disastrous the 
consequences might be; and that a man is not obliged 
to drain his land, however injurious his neglect to do 
so may be to others, nor however easily and cheaply 
it might be done.f So if, when a person in the exer- 
cise of his right of dominion over his own premises 
for the usual and ordinary purposes to which such 
premises are devoted, in the exercise of due care, does 
that which results in injury to his neighbor, by reason 
of natural causes incident to such use, no nuisance 
can be predicated against him. 

*I7 N. Y. Reports, 224. 

f Harwell vs. Armstrong, 19 N. V. 164. 



NUISANCE. 99 

It has been held by the Supreme Court of Pennsyl- 
vania, as well as by the higher courts in many of the 
States, that no nuisance can be predicated on natural 
causes, except where it is the result of some interference 
with the natural order of things by the hand of man. 
This idea is well illustrated in a case recently decided 
in the Supreme Court of Pennsylvania.* In that case 
the defendant had erected a dam upon a stream which 
ran through his land, and also through the plaintiff's 
land, situated above his premises on the stream. The 
dam had stood for many years, and had never been 
productive of injury to the plaintiff or others by setting 
the water back. But after the dam had stood for 
several years, a species of grass began to grow in the 
bed of the stream and choked it up, and finally choked 
the passage of the water to such an extent as to flood 
the plaintiff's land, for which injury the plaintiff 
brought an action. The court below charged the jury 
that " if they should find that the grass would not have 
grown in the channel of the stream, and produced the 
injury to the plaintiff, except for the erection and 
maintenance of the defendant's dam across the stream, 
the plaintiff would be entitled to recover, even though 
the injury would not have occurred, except for the 
growing of the grass; because the defendant's interfer- 

* Knoll vs. Light, 76 Penna. 268. 



IOO FARMERS RIGHTS AND DUTIES. 

ance with the natural condition of the stream had 
produced the injurious result. But that if the grass 
would have grown there even though the dam had 
not been built, and the erection of the dam had not 
contributed to the production of the injury, no action 
would lie, as no person could be made liable for an 
injury that results from purely natural causes, nor 
unless he has done some act which contributes to it." 
The jury found a verdict for the plaintiff, and the 
ruling of the court below was sustained in the appeal. 

A land-owner who creates a nuisance upon his land, 
or purchases land with an existing nuisance upon it, 
cannot, by granting or conveying the land to another, 
get rid of his responsibility on the ground that he has 
no longer any control over the nuisance. Before he 
assigned the land over, he was liable for all conse- 
quential damages ; and it is not in his power to dis- 
charge himself by granting it over to another; more 
especially is this so when he reserves rent for the same, 
because by thus doing he is a continuer of the nuisance 
rather than an abator of it. If a wrong-doer conveys 
his wrong over to another, whereby he puts it out of 
his power to redress it, he ought to answer for it. 

Noisome trades are not always nuisances, yet quiet- 
ness and freedom from noise are indispensable to the 
full and free enjoyment of a dwelling-house. Every 



NUISANCE. IOI 

person, therefore, who makes a noise in the night 
time in the neighborhood of a dwelling-house, so as 
to disturb the repose of the inmates > is guilty of a 
nuisance, and is responsible in damages, unless he can 
show some justification for the making of the noise. 

If an individual collect a crowd together, to the 
annoyance of his neighbors, he is liable in damages 
in an action of nuisance. Therefore, where the defend- 
ant was in the habit of inviting persons into his 
grounds to shoot pigeons, and the effect was that 
idle persons collected near the spot, trod down the 
grass of the neighboring meadows, destroyed the 
fences, and created alarm and disturbance amongst 
women and children in the adjoining thoroughfares, 
it was held that the defendant was guilty of nuisance. 
So where the defendant descended in a balloon into 
the plaintiff's garden, and a number of persons rushed 
into the garden to render help and gratify their 
curiosity, and destroyed the plaintiff's hedges and 
crops, it was held that the defendant, who had set the 
balloon in motion and caused the mischief, was re- 
sponsible for the injury. 

As between landlord and tenant, there is no obliga- 
tion upon the landlord to keep the house in repair, in 
the absence of an express contract to that effect. If, 
therefore, the chimney of a house demised to a tenant 



102 FARMERS RIGHTS AND DUTIES. 

becomes ruinous, and falls through the roof of the 
house and injures the furniture and family of the 
tenant, the latter has no remedy against his landlord 
for the injury. But the landlord is responsible to the 
public and to the occupiers and proprietors of the 
adjoining property, if he demises houses which are in 
a ruinous state, and dangerous to the neighborhood, 
either from original faulty construction, or for want of 
proper and timely repair. But if the houses and build- 
ings are in good repair and condition at the time of 
the demise, and subsequently become ruinous and 
dangerous to the neighborhood, the landlord is not 
responsible for the nuisance unless he had taken it 
upon himself to keep the houses in repair during the 
existence of the lease, or had renewed the lease after 
the houses had become ruinous and in danger of 
falling. 

Ferocious animals may sometimes become nuis- 
ances; and whoever keeps an animal accustomed to 
attack or bite persons, with the knowledge of his 
dangerous propensities, is prima facie liable to an 
action for damages, at the suit of any person attacked 
or injured by the animal. A man is entitled to keep a 
ferocious dog for the protection of his premises, and 
to turn him loose at night, provided he does not dis- 
turb the neighbors by barking, and thereby create a 



NUISANCE. 103 

nuisance. But a man has no right to put a ferocious 
dog in such a situation in the way of access to his 
house, that a person innocently coming there for a 
lawful purpose, in the day-time, may be injured by it. 
And so with a foot path; though it be a private one, a 
man has no right to put a dog, with such a length of 
chain, and so near the path, that he could bite a person 
going along it. Animals wild by nature, as bears, 
lions and tigers, must always be kept chained,, and the 
owner would be liable for injury done by them without 
notice from any one of their mischievous nature. If a 
dog has once bitten a man without provocation, and 
the owner has notice of it, it is his duty to chain up or 
muzzle the dog ; or if he lets him go about, or be at 
the door unmuzzled, and another person is bitten 
under similar circumstances, the owner of the dog will 
be responsible for the injury. 

Various are the instances of nuisances known to the 
law, and scarcely are there any ordinary pursuits of 
life which may not by their abuse be made nuisances 
to somebody. If a chime of church bells be hung at 
such a level that the ringing of them causes an annoy- 
ance amounting to serious injury to the inhabitants of 
the neighboring dwellings, such ringing is a nuisance.* 
The use of a trip-hammer was adjudged a nuisance, 

* Harrison vs. St. Mark's Church, 34 Legal Intel. 76, 222. 



104 FARMERS RIGHTS AND DUTIES. 

and restrained from operating- between the hours of 7 
p. m. and 6 a. m.* The business of a gold-beater, set 
up in a neighborhood occupied by dwelling-houses, 
which by its noise and concussion unreasonably inter- 
feres with the quiet enjoyment of the property, is a 
nuisance, f A Chinese laundry in the basement of a 
building, so conducted as to injure the business of the 
occupant of the next story, may be enjoined as a 
nuisance. J 

^Farrel vs. Foster, 34 Legal Intel. 88. 

■j- Wallace vs. Auer, 32 Legal Intel. 238. 

J Warwick vs. Wah-lee, 31st Legal Intel. 268. 



TABLE OF CASES. 



A NDERSON vs. Nesbit, 2 Rawle 114. 
-^*- Adams vs. McKessen, 53 Penna. 81. 

Ball et al. vs. Slack et al., 2 Wharton 508. 
Bowers vs. Fitzrandolph, Add. 215. 
Beach vs. Parmelee, 23 Penna. 196. 
Bolton vs. Calder & Wilson, 1 Watts 360. 
Brown vs. Vanhorn, 1 Binn. 334. 
Bissel vs. Sholl, 4 Dallas 211. 
Bettinger vs. Baker, 29 Penna. 66. 
Burns vs. Cooper, 31 Penna. 426. 

Campbell vs. Brown, 7 Harris 359. 
Christian vs. Deips, 28 Penna. 271. 
Cobel vs. Cobel, 8 Penna. 342. 
Clark vs. Harvey, 54 Penna. 142. 
Craig vs. Dale,j W. and S. 509. 

Demi vs. Bossier, 1 P. and W. 224. 

Drake vs. Phila. & Erie R. R. Co., 5 I Penna. 240. 

Dyer vs. Depur, 5 Wharton 584. 
(105) 



106 farmers' rights and duties. 

Earhart vs. Youngblood, 27 Penna. 331. 

Fahnestock vs. Fahnestock, 5 S. and R. 174. 
Farrel vs. Foster, 34 Legal Intelligencer 88. 
Freyman vs. Knecht, yS Penna. 141. 
Fitz water vs. Stout, 16 Penna. 22. 

Grier vs. Sampson, 2J Penna. 183. 

Gregg vs. Gregg, 55 Penna. 227. 

Gray vs. Holdship, 17 S. and R. 413. 

Goundie vs. Northampton Water Co., 7 Penna. 233. 

Goodman vs. Gay, 15 Penna. 188. 

Harzell vs. Sill, 12 Penna. 248. 
Hill vs. Sewald, 53 Penna. 271. 
Hitner vs. Ege, 11 Harris 305. 

Harrison vs. St. Mark's Church, 34 Legal Intel. j6 y 
222. 

Hartwell vs. Armstrong, 19 N. Y. 164. 

Hayett vs. Phila. & Reading R. R. Co., 23 Penna. 

373- 

Iddings vs. Nagle, 2 W. and S. 22. 
Irwin vs. Rankin, Add. 146. 

Jatho vs. Passenger Railway Co., 4 Phila. 24. 
Johnston vs. Oppenheimer, 12 Abb. N. Y. 
Jones vs. Janney, 8 Watts and Sargant 436. 

Kerr vs. O'Connor, 63 Penna. 341. 



TABLE OF CASES. JC»7 

King vs. Kline, 27 Penna. 318. 
Klingensmith vs. Gromell, 5 Watts 458. 
Knoll vs. Light et al., 76 Penna. 268. 
Kline vs. Jacobs, 68 Penna. 57. 

Long vs. Fitzsimmons, 1 W. and S. 530. 
Lamberton vs. Stouffer, 55 Penna. 284. 
Lightner vs. Mooney, 10 Watts 407. 
Long vs. Ramsey, 1 S. and R. 72. 
Lewis et al. vs. Jones, 1 Penna. 336. 

Milligan vs. Wehinger, 68 Penna. 235. 

Murphy vs. Campbell, 4 Penna, 480. 

McGregor vs. Brown, 10 N. Y. 1 14. 

McCandless et al. vs. Engle et al., 51 Penna. 309. 

McDonald vs. Tindall, 3 Rawle 492. 

McCollum vs. Germantown Water Co., 54 Penna. 40. 

North Penna. R. R. Co. vs. Rehman, 49 Penna. 101. 

Paff ztf. Slack, 7 Barr 254. 
Pyle vs. Pennot, 2 W. and S. 390. 
Paul vs. Carven, 24 Penna. 207. 
Penna. Salt Manf'g. Co. et al. vs. Neal, 54 Penna. 9. 
Pulhamer vs. Pursel, 2 Clark 141. 
Penna. R. R. Co. vs. Kerr, 62 Penna. 353. 
Phila. & Reading R. R. Co. vs. Hendrickson, 80 
Penna. 182. 



108 farmers' rights and duties. 

Phila. & Reading R. R. Co. vs. Yierger et al. } 73 
Penna. 121. 

Rank vs. Rank, 5 Penna. 211. 

Ream vs. Harnish, 45 Penna. 376. 

Rodgers et al. vs. Gilinger et al. y 30 Penna. 185. 

Rutz vs. Ohrie, 1 Rawle 218. 

Railroad Co. vs. Skinner, 19 Penna. 298. 

Shunk vs. Nav. Co. of Schuylkill, 14 S. and R. 71. 

Strauser vs. Kosier, 58 Penna. 496. 

Smith vs. Johnston, 76 Penna. 191. 

Stoner vs. Hunsicker, 47 Penna. 514. 

Seeger vs. Pettit, J J Penna. 437. 

Stewart vs. Shoonfelt, 13 S. and R. 360. 

Stewart vs. Freeman, 10 Harris. 120. 

Swarts vs. Moore, 5 S. and R. 257. 

Stultz vs. Dickey, 5 Binn. 285. 

Sanderson vs. Haverstick, 8 Barr. 294. 

Taylor's " Landlord and Tenant," sec. 347. 

" 378. 
" « u u 3I 3_ 22> 

Thorn vs. Hamberg, 2 Brew r st. 528. 
Thompson vs. Sheplar, 72 Penna. 160. 
Tinicum Fishery Co. vs. Carter, 61 Penna. 21. 

Voorhies vs. Freeman, 2 W. and S. 116. 



TABLE OF CASES. 



IO9 



Vaughan vs. Haldeman, 33 Penna. 522. 

Wilkins vs. Vashfinder, 7 Watts 378. 

Watson vs. Phila. & Trenton R. R. Co., 7 Phila. 249. 

Warwick vs. Wah-lee, 3 1 Leg. Intel. 268. 

Wallace vs. Auer, 32 Legal Intel. 238. 

Wood on Nuisance, pages 1 and 2. 

MISCELLANEOUS CASES. 



26 Mass. 309. 
120 Mass. 99.. 

6 Cush. (Mass.) 
113 Mass. 376. 
107 Mass. 494. 

9 N. Y. 183. 
39 N. Y. 400. 
25 N. Y. 123. 
25 N. Y. 126. 
17 N. Y. 224. 
48 N. Y. 201. 

2 A. L. J. 251. 
8 A. L. J. 574. 

7 A. L.J. 551. 
4 A. L.J. 315. 



70. 



30 Legal Int. 361. 
32 Legal Int. 353. 

38 Vt. 105. 
12 Vt. 273. 

Addison 146. 
Addison 215. 
Add. on Contracts 628. 

53 Maine 511. 

11 Conn. 177. 

11 Q. B. 347. 

1 Blackstone's Com. 431. 

9 Eng. C. L. 373. 



LEGAL FORMS. 



RELEASE UPON A MORTGAGE. 

TT7HEREAS, A. B., by indenture of mortgage, 
* * dated the day of , A. D. 18— , re- 
corded in the office for recording deeds, etc., at , 

in mortgage book B, page , did grant in mortgage 

to me, C. D., of the township of -, in the county 

of , to secure the payment of the sum of 

dollars, with interest, a certain messuage, tene- 
ment, etc., (here describe the premises as set forth in 
the mortgage). And whereas, the said A. B. is desir- 
ous of having the said messuage and lot relieved from 
the operation of the said mortgage. 

Now, I, the said C. D., in consideration of the 
premises and of the sum of one dollar, to me in hand 
paid by the said A. B., the receipt whereof I do 
hereby acknowledge, have covenanted, promised and 
agreed, and hereby do for myself, my executors, ad- 
ministrators, and assigns, covenant, promise and agree 
with the said A. B., his heirs and assigns, that no exe- 

(IIO) 



LEGAL FORMS. Ill 

cution or other final process, or proceeding in law, 
shall be sued, levied, taken, or executed by me, my 
heirs, executors, administrators, or assigns, by virtue 
of the said mortgage, on, for, or against the messuage 
and lot conveyed by the said A. B. to me, the said C. 
D,, as above recited ; and by these presents do remise, 
release, and forever quit-claim unto the said A. B., his 
heirs, executors, administrators, and assigns, the afore- 
said described premises. 

In witness whereof, I, the said C. D, have hereunto 

set my hand and seal, the day of , A. D., 

one thousand eight hundred and . 

Signed, sealed and delivered "j 

in presence of J C. D. [seal.] 

E. F. 
G. H. 



RELEASE FROM THE LIEN OF A 
JUDGMENT. 

Whereas, J. D., of , has obtained a judg- 
ment in the Court of Common Pleas of county, 

against A. C. of , carpenter, (it being No. — 

of Term A. D. 18 — ) for the sum of 

dollars and costs, which judgment now remains a. lien 
on all the real estate of the said A. C, within the 



112 FARMERS RIGHTS AND DUTIES. 

county aforesaid. And whereas, the said A. C. hath 
requested that all that messuage, piece, or parcel of 
land situated, etc. (here describe it), which was con- 
veyed to him by E. F. and wife, should be exonerated 
and discharged from the lien and operation of the 
judgment aforesaid. Now know ye, that the said J. 
D., favoring the request of the said A. C, and in con- 
sideration of one dollar lawful money of the United 
States, at the execution hereof by the said A. C, well 
and truly paid, the receipt whereof is hereby acknowl- 
edged, hath exonerated and discharged, and hereby 
doth exonerate and discharge, the above described 
messuage, piece or parcel of land, with the appurte- 
nances, of and from the lien and obligation of the said 
judgment, and of and from all suits, actions, execu- 
tions, costs, damages and demands whatsoever, for or 
on account or by reason of the said judgment; pro- 
vided, however, that nothing herein contained shall be 
construed so as to impair the operation of the said 
judgment against the said A. C. and his estate, other 
than against the messuage, piece or parcel of land 
hereinbefore expressly mentioned and described. 
In witness, etc. J. D. [seal.] 



LEGAL FORMS. 113 

GENERAL RELEASE OF ALL DEMANDS. 

Know all men by these presents, that I, A. B., 

of , as well for and in consideration of the 

sum of one dollar, to me in hand paid by C. D., of 

, at and before the sealing and delivery hereof, 

the receipt whereof I do hereby acknowledge, as for 
divers others good causes and valuable considerations, 
me thereto specially moving, have remised, released, 
quit-claimed and forever discharged, and by these 
presents for me, my heirs, executors and administra- 
tors, do remise, release, quit-claim, and forever dis- 
charge the said C. D., his heirs, executors and admin- 
istrators, and every of them, of and from all and all 
manner of action and actions, cause and causes of 
action and actions, suits, debts, dues, duties, sum and 
sums of money, accounts, reckonings, bonds, bills, 
specialties, covenants, contracts, agreements, promises, 
variances, damages, judgments, extents, executions, 
claims and demands whatsoever, in law or in equity, 
or otherwise howsoever, which against the said C. D. 
I ever had, now have, or which I, my heirs, executors, 
or administrators hereafter can, shall, or may have, 
for, upon, or by reason of any matter, cause or thing 
whatsoever, from the beginning of the world to the 
day of the date of these presents. 

In witness, etc. [seal.] 



114 FARMERS RIGHTS AND DUTIES. 

AGREEMENT FOR THE SALE OF LAND. 

Articles of agreement, made and concluded the 
tenth day of May, in the year of our Lord one 
thousand eight hundred and fifty-two, between John 
Jones, of Erie, in the county of Erie, and State of 
Pennsylvania, of the one part, and William Burns, of 
the same place, of the other part, as follows, to wit : 
The said John Jones agrees to sell to the said William 
Burns all that certain messuage or piece of land situ- 
ated, etc. (here describe the premises), with the appur- 
tenances, for the sum of five hundred dollars ; and will, 
on or before the fourth day of October next, on the 
receipt of the said sum of five hundred dollars, at the 
charges of the said William Burns, execute a proper 
conveyance thereof, with covenant of general warranty, 
and against encumbrances, to the said William Burns, 
his heirs and assigns : and the said William Burns 
agrees that, on the execution of such conveyance, he 
will pay the said sum of five hundred dollars to the 
said John Jones or his assigns. 

And it is further agreed that the conveyance shall 
be prepared by, and at the expense of, the said William 
Burns, to the approbation of the respective counsel of 
the said John Jones and William Burns, and that all 
taxes and outgoings in respect of the premises, in the 



LEGAL FORMS. 1 1 5 

meantime, shall be paid by the said John Jones. And 
it is further agreed, that the said William Burns shall 
receive the rents and profits of the premises from this 
date, to his proper use. 

And it is further agreed that if the said conveyance 
shall not be executed, and the purchase money paid, 
on or before the said fourth day of October next, then 
the said William Burns shall pay legal interest for the 
same from this date, unto the said John Jones. 

In witness whereof, the parties to these presents 
have hereunto set their hands and seals the day and 
year first above written. 
Sealed and delivered | 

in presence of J John Jones, [seal.] 

James "Styles, 
Powell Harper. William Burns, [seal.] 



ANOTHER AGREEMENT FOR SALE OF 
LAND. 

Agreement made and entered into the tenth day 
of June A. D., 1852, between John Jones, of the city 
of Erie, of the one part, and William Burns, of the 
same place, of the other part : Witnesseth, that the 
said John Jones, in consideration of the sum of one 
hundred dollars now paid, and two hundred and forty 



Il6 farmers' rights and duties. 

dollars to be paid when a deed is executed, doth grant, 
bargain and sell to the said William Burns, his heirs 
and assigns, all that piece of ground, situated in Erie, 
and bounded as follows, viz. : (Here describe the prem- 
ises by its boundaries, together with all and singular 
the appurtenances thereunto belonging, or in anywise 
appertaining.) 

And the said parties hereby bind themselves, their 
heirs, executors, and administrators, for the perform- 
ance of all and every of the above agreement, as wit- 
ness their hands and seals the day and year first above 
written. 
Signed, sealed and delivered | 

in the presence of J John Jones, [seal.] 

James Styles, 
Bester Town. William Burns, [seal.] 



LEASE OF A FARM AND APPURTENANCES 
FOR A TERM OF YEARS. 

This indenture, made the day of , in 

the year of our Lord one thousand eight hundred 

and , between S. S., of the township of , 

in the county of , and State of Pennsylvania, 

of the one part, and W. J., of township, county, 

and State aforesaid, of the other part, witnesseth : 



LEGAL FORMS. 117 

That the said S. S., for and in consideration of the 
yearly rent and covenant hereinafter mentioned and 
reserved, on the part and behalf of the said W. J., 
his heirs, executors, and administrators, to be paid, 
kept and performed, hath demised, set, and to farm 
let, unto the said W. J., his heirs and assigns, all that 
certain messuage or tenement, tract, piece, or parcel 

of land, situated in the township of aforesaid, 

adjoining lands of A. E., J. S., S. J., and others, and 
now in the tenure of T. T. (or as the case may be), 

containing acres, together with all and singular 

the buildings, improvements, and other the premises 
hereby demised, with the appurtenances. To have and 
to hold the same unto the said W. J., his heirs and 

assigns, from the day of next ensuing 

the date hereof, for and during the term of 

years thence next ensuing, and fully to be completed 
and ended ; the said W. J. yielding and paying for the 
same unto the said S. S., his heirs and assigns, the 

yearly rent or sum of dollars, on the 

day of , in each and every year during the 

term aforesaid (if the rent is to be paid in produce, 
after the words yielding and paying insert " thereout 
unto the said S. S., his heirs and assigns, for the 
yearly rent," as follows: One-half of all the winter 
grain, one-third of all the summer grain raised and 



n8 farmers' rights and duties. 

growing on the premises, etc., as per agreement). 
And at the expiration of the said term he, the said 
W. J., his heirs and assigns, shall and will quietly and 
peaceably surrender and yield up the said demised 
premises, with the appurtenances, unto the said S. S., 
his heirs and assigns, in as good order and repair as 
the same now are, reasonable wear, tear and casualties 
which may happen by fire or otherwise only excepted. 
In witness whereof, etc. 



FORM OF LEASE OF A DWELLING-HOUSE 
FOR A TERM OF YEARS. 

This agreement made on the day of 

in the year one thousand eight hundred and 



witnesseth : That C. D., of , hath rented from 

A. B., of aforesaid, a certain piece or parcel of 

land, situated on the side of street, 

between and streets, whereon is erected 

a brick divclliiig-lwiise (or as the case may be), No. — , 

for years from the above date, at the rate of 

dollars per annum, payable quarterly. The 

said C. D. shall give three months' notice previous to 
the expiration of said term, of his (or her) intention to 
remove ; and three months' notice, previous to the 
expiration of said term, being given to him (or her), 



LEGAL FORMS. I I9 

the said C. D., to quit the premises, he (or she) shall, 
at the expiration thereof, deliver unto the said A. B. 
peaceable possession of said premises, in the order and 
condition as when he for she) took possession thereof, 
common wear and casualties which may happen by 
fire or otherwise excepted. In default of notice as 
aforesaid, this agreement shall be considered as re- 
newed for the succeeding term. 
Signed, sealed and delivered ] 

in the presence of J A. B. [seal.] 

James Styles, 

Peter Green. C. D. [seal.] 



PETITION FOR THE LAYING OUT OF A 

PUBLIC ROAD. 

To the Honorable, the Judges of the Court of Quarter 

Sessions of the Peace in and for the Comity of . 

The petition of the undersigned, inhabitants of the 

township of , in the said county, respectfully 

showeth : That your petitioners labor under a great 
inconvenience for want of a public road or highway to 
lead from to . Your petitioners there- 
fore pray the Court to appoint proper persons to Mew 
and lay out the same, according to law ; and they will 
ever pray, etc. 



120 FARMERS RIGHTS AND DUTIES. 

PETITION FOR THE LAYING OUT OF A 
PRIVATE ROAD. 

To the Honorable, the Judges of the Court of Quarter 

Sessions of the Peaee, in and for the county of . 

The petition of A. B., of the county of , re- 
spectfully represents : That your petitioner labors 
under great inconvenience for want of a private road 

to lead from the public road running from to 

, to the dwelling house (or as the case may be) 

of your petitioner, in said county. Your petitioner, 
therefore, prays the Court to appoint proper persons 
to view and lay out the same, according to law ; and 
he will ever pray, etc. 



PETITION FOR SWINGING GATES. 

To the Honorable, the Judges of the Court of Quarter 

Sessions of the Peace, of the County of . 

The petition of John Doe, respectfully represents : 
That upon the petition of Richard Roe to this Court, 
setting forth that he labored under inconvenience for 
want of a road from his dwelling-house, in East Brad- 
ford Township, to a point in the highway known as 
the Strasburgh road, near Edge Cope's Mill, at the 
bridge over the Brandywine, this Court has directed 



LEGAL FORMS. 121 

a view of the place where such road is requested ; that 

said road, if laid out, will be laid out over land of the 

petitioner ; that the petitioner is desirous to have leave 

to hang and maintain at his own expense swinging 

gates across such road : he therefore, prays the Court 

to direct the viewers appointed to view said road, to 

inquire and report whether the same may be done 

without much inconvenience to the persons using said 

road, and he will, etc. 

John Doe. 

FORM OF NOTICE TO QUIT, 

Given to tenant after the expiration of the term, where 
the lease is for 07ie or more years certain, or for any 
fixed, definite period, under act of 21st March, i'/J2. 
To Mr. C. D. 

Sir : — Take notice, that as the term of one year, for 
which the tract of land and premises situated, etc. (here 
describe it, or, if in a city, say, the premises situated 

on the — side of street, No. — , between 

and streets, in the city of ), and 

now occupied by you, were demised by me to you, 
expired on the first day of April, A. D., 18 — , and as 
I am desirous to have again and repossess the said 
premises, you are hereby required to remove from and 
leave the same. Respectfully yours, etc., 
, April 10, 18—. A. B. 



122 FARMERS RIGHTS AND DUTIES. 

FORM OF NOTICE TO QUIT, 

Given to tenant three months before the expiration of 
the year, where the lease is from year to year (that 
is, without any time being fixed for its termination, 
but to continue at the pleasure of the landlord, or of 
both parties), under act of 21st March, 17 J2. 
To Mr. C. D. 

Sir : — You are hereby notified and required to quit, 
remove from, and deliver up to me, possession of the 
premises situated, etc. [here describe them, as in the 
above form of notice], (which you now hold as tenant 
under me), at the end of your current term, to wit, on 
the first day of April, A. D., 18 — , as I desire to have 
again and repossess the same. 

Respectfully yours, etc., 
, January 1, 18 — . A. B. 



A NOTE ON DEMAND. 

Mercer, Pa., January 10, 1880. 
For value received, I promise to pay Jared Suttle, 
or order, on demand, one hundred dollars without 
defalcation. John Jones. 



LEGAL FORMS. I 23 

JUDGMENT NOTE. 

$500. 

January 18, 1880. 

Thirty days after date, I promise to pay to the order 
of William Burns, five hundred dollars, without defal- 
cation, value received. And further, I do hereby 
empower any attorney of any Court of Record within 
the United States, or elsewhere, to appear for me, and, 
after one or more declarations filed, confess judgment 
against me as of any term for the above sum, with 

costs of suits and attorney's commission of per 

cent, for collection, and release of all errors, and with- 
out stay of execution; and inquisition and extention 
upon any levy on real estate is hereby waived, and 
condemnation agreed to ; and the exception of personal 
property from levy and sale on any execution hereon, 
is also hereby expressly waived, and no benefit of 
exemption be claimed under and by virtue of any 
exemption law now in force, or which may be here- 
after passed. 

Witness my hand and seal. 

John Jones, [seal.] 



124 FARMERS RIGHTS AND DUTIES. 

COMMERCIAL FORM OF PROMISSORY 

NOTE. 
£100. 

Philadelphia, May 20, 1880. 

Ninety days after date, I promise to pay to the 

order of William Burns, one hundred dollars, without 

defalcation, for value received. 

John Jones. 



ANOTHER FORM OF PROMISSORY NOTE. 

Hi 00. 

Erie, April 20, 1880. 

On the first day of June next, I promise to pay to 
the order of William Burns, one hundred dollars, with 
interest, without defalcation, for value received. 

John Jones. 



PROMISSORY NOTE PAYABLE AT A 

PARTICULAR BANK. 

$500. 

Pittsburgh, January 10, 1880. 

Ninety days after date, I promise to pay to the 
order of William Burns, at the Exchange Bank, five 
hundred dollars, without defalcation, for value re- 
ceived. John Jones. 



LEGAL FORMS. 125 

FORM OF ENDORSEMENT. 

Pay to the order of James Brown. 

William Burns. 



A NOTE WITH SECURITY, OR FOR TWO OR 
MORE PERSONS. 

Meadville, Pa., January 10, 1880. 
We, or either of us, (or, " jointly and severally,") 
promise to pay to the order of Eliphalet Betts, on the 
first day of June next, one thousand dollars, with 
interest, for value received. 

John Jones, 
William Burns. 



AN ACT 

TO 

AMEND AND CONSOLIDATE THE SEVERAL ACTS 

RELATING TO 

GAME AND GAME FISH, 

APPROVED JUNE 3, 1878. 



AN ACT 

To amend and consolidate the several acts i-elating to Game and 
Game Fish. 

Section i. Be it enacted by the Senate and House of 
Representatives of the Commonivealth of Pennsylvania 
in General Assembly met, and it is hereby enacted by the 
authority of the same, That no person shall kill or 
pursue in any part of the State any elk or wild deer, 
save only from the first day of October, in any year, to 
the sixteenth day of December next following ; no 
person shall have in his or her possession, or offer for 
sale, or transport, any elk, wild deer, antelope, or 

fresh venison, save only from the first day of October, 

(126) 



GAME AND FISH ACT. \2*] 

in any year, to the sixteenth day of December next 
following ; no person shall at any time kill any fawn 
when in its spotted coat, or have the fresh skin of any 
such fawn in his or her possession ; no person shall 
pursue any elk or wild deer with dogs in any part of 
this State, or shall kill in the water any elk, or wild 
deer, or fawn, which has been driven thereto by dogs ; 
any person offending against any of the provisions of 
this section, shall be deemed guilty of a misdemeanor, 
and shall be liable to a penalty of fifty dollars for each 
elk, wild deer,- or fawn so killed, or pursued, or 
trapped, or fresh elk, wild deer, antelope, or fawn skin 
had in his or her possession, and may be proceeded 
against in any county of the State wherein he may be 
arrested having the same in his or her possession : 
And provided also, That any dogs pursuing elk, or 
wild deer, or fawns, may be killed by any person, and 
any constable or other town official may kill any dog 
that habitually pursues elk, wild deer, or fawns, and 
the owner of such dog shall be liable to a penalty of 
ten dollars for each elk, wild deer, or fawn killed by 
such dog: Provided further, That this act shall be so 
construed as not to change or alter any exception of 
any counties, or parts of counties, of this State hereto- 
fore made in any act of Assembly, prohibiting running 
of deer with dogs. 



128 farmers' rights and duties. 

Section 2. No person shall kill, or expose for sale, 
or have in his or her possession after the same has 
been killed, any gray, black or fox squirrel, between 
the first day of January and the first day of September 
in each year, under a penalty of five dollars for each 
and every squirrel so killed, exposed for sale, or had 
in possession. 

Section 3. No person shall kill, or expose for sale, 
or have in his possession after the same has been 
killed, any hare, commonly called rabbit, between the 
first day of January and the fifteenth day of October, 
in any year, under a penalty of five dollars for each 
and every hare or rabbit so killed, or exposed for sale, 
or had in his possession ; no person shall hunt, or 
cause or permit the hunting of hares or rabbits with a 
ferret or ferrets, under a penalty of ten dollars for each 
and every hare or rabbit caught or killed by means of 
a ferret or ferrets. 

Section 4. No person shall at any time kill any 
wild duck or goose with any device or instrument 
known as a swivel or punt gun, or with any gun other 
than such guns as habitually are raised at arm's length 
and fired from the shoulder; or shall use any net, 
device, instrument, or gun, other than such gun as 
aforesaid, with intent to capture or kill any such wild 
duck or goose, under a penalty of ten dollars. 



GAME AND FISH ACT. 1 29 

Section 5. No person shall kill or expose for sale, 
or have in his or her possession after the same has 
been killed, any wild turkey, between the first day of 
January and the fifteenth day of October following, in 
any year, under a penalty of ten dollars for each bird 
so killed, exposed for sale, or had in possession. 

Section 6. No person shall kill, take, or expose for 
sale, or have in his or her possession, any wild fowl, 
between the fifteenth day of May and the first day of 
September of any year, under a penalty of ten dollars 
for each and every wild fowl so killed, taken, exposed 
for sale, or had in possession. 

Section 7. No person shall kill or expose for sale, 
or have in his or her possession after the same has' 
been killed, any upland or grass plover, between the 
first day of January and the fifteenth day of July, in 
any year, under a penalty of ten dollars for each bird 
so killed, exposed for sale, or had in possession. 

Section 8. No person shall kill or expose for sale, 
or have in his or her possession after the same has 
been killed, any woodcock, between the first day of 
January and the fourth day of July, in any year, under 
a penalty often dollars for each bird so killed, exposed 
for sale, or had in possession. 

Section 9. No person shall kill or expose for sale, 

or have' in his or her possession after the same has 
6* 



I3O FARMERS RIGHTS AND DUTIES. 

been killed, any quail or Virginia partridge, between 
the first day of January and the fifteenth day of Octo- 
ber, in any year, under a penalty of ten dollars for 
each bird so killed, exposed for sale, or had in pos- 
session. 

Section 10. No person shall kill or expose for sale, 
or have in his or her possession after the same has 
been killed, any ruffed grouse, commonly called 
pheasant, or pinnated grouse, commonly called prairie 
chicken, between the first day of January and the first 
day of October, in any year, under a penalty of ten 
dollars for each bird so killed, exposed for sale, or had 
in possession. And it shall not be lawful to hunt 
pheasants or pinnated grouse during the night time, 
in any manner whatever, under a penalty often dollars 
for each offense. 

Section ii. No person shall kill or expose for sale, 
or have in his or her possession after the same has 
been killed, any rail bird or reed bird, except in the 
months of September, October, and November, under 
a penalty of five dollars for each and every rail or reed 
bird so killed, exposed for sale, or had in possession. 

Section 12. No person shall, at any time, within 
this State, kill, trap, or expose for sale, or have in 
his or her possession after the same has been killed, 
any night-hawk, whip-poor-will, sparrow, thrush, lark, 



GAME AND FISH ACT. 131 

finch, martin, chimney swallows, barn swallows, wood- 
pecker, flicker, robin, oriole, red or cardinal bird, cedar 
bird, tanager, cat bird, blue bird, or any other insectiv- 
orous bird, under a penalty of five dollars for each bird' 
killed, trapped, exposed for sale, or had in possession. 

Section 13. The last section, to wit : Section twelve, 
shall not apply to any person who shall kill any bird 
for the purpose of scientific investigation, or having 
the same stuffed or set up as a specimen. 

Section 14. No person shall rob or destroy the 
eggs or nests of any wild birds whatsoever, only those 
of such predatory birds as are destructive of game and 
insectivorous birds, under a penalty of ten dollars : 
Provided, That this section shall not apply to any 
person who shall collect such eggs for scientific 
purposes. 

Section 15. No person shall kill, catch, or discharge 
any fire-arms at any wild pigeon while on its nesting- 
ground, or break up, or in any manner disturb, such 
nesting-ground, or the birds therein, or discharge any 
fire-arms within one-fourth of a mile of such nesting- 
place of any wild pigeon or pigeons, or shoot at, maim 
or kill any wild pigeon or pigeons within their roost- 
ings, under a penalty of twenty dollars : Provided, 
That no person except citizens of this Commonwealth 
shall trap or catch wild pigeons with nets, in any of 



132 FARMERS RIGHTS AND DUTIES. 

the counties of this Commonwealth, unless he shall 
have first taken out a license from the county treasurer 
of the county in which said pigeons are found, for 
which license he shall pay the sum of fifty dollars, 
for the use of said county, under a penalty of one 
hundred dollars : And provided further, That no per- 
son shall, at any time or place within this State, kill 
or take any wild pigeon with any net, trap, or snare, 
nor set any such net, trap, or snare, for the purpose of 
taking or killing any of said pigeons during the nest- 
ing season; nor shall any person sell, or expose for 
sale, any of the said pigeons after the same shall have 
been so taken or killed, under a penalty of ten dollars 
for each bird so taken. 

Section 16. No person shall, at any time or place 
within this State, kill or take any wild turkey, or ruffed 
grouse, commonly called pheasant, or quail, or Vir- 
ginia partridge, or woodcock, or rail or reed bird, any 
pinnated grouse, commonly called prairie chicken, with 
any net, trap, snare, or torchlight, nor use any such 
net, trap, snare, or torchlight, for the purpose of taking 
or killing any of said birds; nor shall any person sell, 
or expose for sale, any of the said birds after the same 
shall have been so taken or killed, under a penalty of 
ten dollars for each bird. And it shall be lawful for 
any person to take and destroy any such nets, traps, 



GAME AND FISH ACT. 1 33 

or snares, whenever found set : Provided, That noth- 
ing in this section shall be so construed as to prevent 
individuals or associations for protection, preservation, 
or propagation of game, from gathering alive by nets 
or traps, with the written consent of the owner of the 
land, quails or Virginia partridges, from the twentieth 
day of December, in any year, to the first day of Feb- 
ruary next following, for the sole purpose of preserv- 
ing them alive over the winter. 

Section 17. There shall be no hunting, or shooting, 
or fishing, on the first day of the week, called Sunday; 
and any person offending against the provisions of this 
section shall be liable to a penalty of twenty-five 
dollars. 

Section 18. No person shall at any time catch or 
kill any speckled trout with any device, save only with 
rod, hook, and line, except for the purpose of propaga- 
tion, under a penalty of twenty-five dollars for each 
offense. 

Section 19. No person shall kill, or expose to sale, 
or have in his or her possession after the same has 
been killed, any sea salmon or speckled trout, save 
only during the months of April, May, June and July, 
under a penalty of ten dollars for each salmon or trout 
so killed or had in possession ; but this section shall 
not prevent any person from catching trout with nets, 
in waters owned by himself, to stock other waters. 



134 FARMERS RIGHTS AND DUTIES. 

Section 20. No person shall kill any lake trout in 
the months of October, November, and December, 
under a penalty of ten dollars for each fish. 

Section 21. Any person trespassing on any lands 
for the purpose of taking fish from any private pond, 
stream, or spring, after public notice on the part of the 
owner or occupant thereof, such notice being posted 
adjacent to such pond, stream, or spring, shall be 
deemed guilty of trespass, and in addition to damages 
recoverable by law, shall be liable to the owner, leesee, 
or occupant, in a penalty of one hundred dollars for 
every such offense : Provided, however, This section 
shall apply only to such ponds, streams, or springs, as 
shall be used or improved by the owners or lessees for 
the propagation offish or game fish. 

Section 22. It shall not be lawful for any person or 
persons to place any fish basket, gill nets, pond nets, 
eel weirs, kiddles, brush or facine nets, or any other 
permanent set means of taking fish, in any waters of 
this Commonwealth. Any person violating the pro- 
visions of this section shall be liable to a penalty of 
twenty-five dollars for each and every offense : Pro- 
vided, That this section shall not apply to the fishing 
with gill nets in the river Delaware, below Trenton 
Falls. 

Section 23. It shall not be lawful at any time tc 



GAME AND FISH ACT. 1 35 

catch fish by means of the drawing of a seine or seines 
in any of the waters of this State, under a penalty of 
twenty-five dollars for each offense: Provided \ That 
the provisions of this act shall not extend to shad 
fishing : Provided also, That the meshes of such seines 
used for the catching of shad shall not be less than 
three inches : And provided further, That no seine 
shall be drawn within one-fourth of a mile of any dam 
across any river of this Commonwealth, under a penalty 
of fifty dollars for each and every offense. 

Section 24. It shall be lawful to fish with fyke or 
hoop nets in any of the streams of this Commonwealth 
uninhabited by brook or speckled trout, during the 
months of March, April, May, September, October 
and November, in each year : Provided, That the 
meshes of said nets shall not be less than one inch in 
size, and that said net or nets shall not be placed at 
the confluence of any wing-walls, either newly made 
or abandoned : And provided further, That it shall be 
the duty of any one taking or capturing, by means of 
fyke or hoop net as aforesaid, any salmon, bass, trout, 
speckled trout, pike, pickerel, or every kind of fish in- 
troduced into any of the waters of this Common- 
wealth by authority of the same, for the purpose of 
stocking the said waters,- to return the same alive to 
the waters whence taken. The violation of any of the 



i -\6 farmers' rights and duties. 



provisions of this section shall subject the offender to 
a penalty of twenty-five dollars for each and every 
offense. 

Section 25. No person shall, by any means or 
device whatsoever, catch or kill in any waters of this 
State any black bass, green bass, yellow bass, willow 
bass, rock bass, Lake Erie or grass bass, pike or pick- 
erel, or wall-eyed pike, commonly known as Susque- 
hanna salmon, between the first day of January and 
the first day of June ; nor shall catch or kill any of 
said species of fish at any other time during the year, 
save only with a hook and line, scroll or spear. Any 
violation of this section shall subject the offender to a 
penalty of ten dollars for each and every offense : Pro- 
vided, This section shall not apply to the waters of 
Lake Erie, except in the ponds on the island, or 
peninsula forming the north and east shores of the 
harbor of Erie. 

Section 26. No person or persons shall catch any 
speckled trout, yellow bass, green bass, willow bass, or 
black bass, Lake Erie or grass bass, or other fish, in 
any of the waters of this State, by shutting or drawing 
off any portion of said waters, or by dragging or draw- 
ing small nets or seines therein, when the waters shall 
be wholly or in part drawn off, except by order of the 
State fishery commissioners ; and it shall not be lawful 



GAME AND FISH ACT. I 37 

for any one to place or cause to be placed in any of the 
waters of this Commonwealth, quick lime or poisonous 
bait, any torpedo, giant powder, nitro-glycerine or 
other explosive substance, with intent to catch or kill 
any fish aforesaid ; and any person violating the pro- 
visions of this act shall be guilty of a misdemeanor, 
and, on conviction thereof, shall be liable to a penalty 
of fifty dollars. 

Section 27. That the board of fish commissioners 
shall, upon the application to them in writing often or 
more citizens of any county in this Commonwealth, 
appoint one or more fish wardens or water bailiffs, 
whose duty it shall be to enforce by information or 
prosecution the laws of this Commonwealth now in 
force, or that may hereafter be passed, providing for 
the propagation and protection of fish in any of the 
interior waters of this Commonwealth : Provided, That 
the Commonwealth shall not be liable to pay to any of 
the persons so appointed any salary or compensation 
for their services. 

Section 28. Nothing in this act shall be so con- 
strued as to prevent any person in any part of this 
State from catching speckled trout or black bass with 
nets in waters owned by himself, for the purpose of 
stocking other waters : Provided, That nothing in this 
act shall be construed to prevent any person from 



138 farmers' rights and duties. 

taking fish from private ponds or streams owned by 
him or them, and used for cultivating fish. 

Section 29. Nothing in this act shall be so con- 
strued as to prevent the catching of bait fish by means 
of hand nets or cast nets, for angling or scientific 
purposes. 

Section 30. That no person or persons shall catch 
or kill, by any means whatever, any lake bass or grass 
bass, rock bass or goggle eyes, or blue sun fish species, 
newly introduced by the fish commissioners of the 
State, for a period of three years from January first, 
eighteen hundred and seventy-eight, under a penalty 
of five dollars for each and every fish so taken or had 
in possession. 

Section 31. No person shall, by any means or 
device whatever, or at any season of the year, kill any 
black, yellow or green bass of a less size than six 
inches in length; but should any such fish be taken or 
captured by any means of less size than six inches in 
length, it shall be the duty of 'any one so taking or 
capturing the same to return the same immediately to 
the waters whence taken. Any violation of this sec- 
tion shall subject the offender to a penalty of ten 
dollars for each and every offense. 

Section 32. Any person may sell or have in his or 
her -possession any pinnated grouse, commonly called 



GAME AND FISH ACT. 1 39 

prairie chicken, ruffed grouse, commonly called pheas- 
ant, and quail or Virginia partridge, and woodcock, for 
a period of fifteen (15) days after the time limited for 
killing the same has expired, and shall not be liable to 
any penalty under this act. 

Section 33. In all cases of arrests made for the 
violation of each or any of the foregoing sections of 
this act, the possession of the game, fishes, birds, 
animals, fowls, nets, or other devices provided for or 
so mentioned, shall he prima facie evidence of the vio- 
lation of said act : Provided, That nothing in this act 
will prevent any person from killing any wild animal 
or bird when found destroying grain, fruit, or vegeta- 
bles on his or her premises. 

Section 34. Any justice of the peace or alderman, 
upon information or complaint made before him, by 
the affidavit of one or more persons, of the violation 
of the provisions of this act by any person or persons, 
is hereby authorized and required to issue his warrant 
under his hand and seal, directed to any constable, 
police officer, or warden, to cause such person or 
persons to be arrested and brought before said justice 
or alderman, who shall hear and determine the guilt 
or innocence of the person or persons so charged, and 
if convicted of said offense or offenses, shall be sen- 
tenced to pay the fine or fines, penalty or penalties, 



140 farmers' rights and duties. 

attached to such violations, together with costs, one- 
half of which penalties shall go to the informer, and 
the remaining one-half shall be forthwith paid to the 
treasurer of the county in which the offense was com- 
mitted, and it shall be the duty of said treasurer to 
distribute said fund, so arising, at the close of each 
year, to the various school districts in said county, in 
proportion to the number of taxables in said districts : 
Provided y That said conviction shall be had within one 
year from the time of committing the offense : And 
provided further, That the defendant, on refusing to 
pay said penalty, shall be committed to the common 
jail of the count}- for a period of not less than one day 
for each dollar of penalty imposed, unless the defend- 
ant enter into recognizance with one or more sufficient 
securities to answer said complaint on a charge of a 
misdemeanor, before the court of quarter sessions of 
the peace of the county in which the offense is com- 
mitted, which court, on conviction of the defendant of 
the offense charged, and failure to pay the penalty or 
penalties imposed by this act, together with costs, shall 
commit said defendant to the common jail of the 
county-, for a period of not less than one day for each 
dollar of penally- imposed. 

Section y z . Any judge of the court of quarter ses- 
sions of the peace, or any alderman, justice of the 



GAME AND FISH ACT. I4I 

peace, police or other magistrate, upon receiving suffi- 
cient proof, by affidavit, that any of the provisions of 
this act have been violated by any person being tem- 
porarily within its jurisdiction, but not residing there 
permanently, or by any person whose name and resi- 
dence were unknown, or by any permanent resident, 
or citizen, is hereby authorized and required to issue 
his warrant for the arrest of such person, and to cause 
him to be committed or held to bail to answer the 
charge against him ; and any such justice or magistrate, 
upon receiving proof or probable cause for believing in 
the concealment of any game or fish mentioned in this 
act, during any of the periods prohibited, shall issue 
his search warrant and cause search to be made in any 
house, market, boat, car, vehicle, or building. All 
courts of quarter sessions are hereby invested with 
jurisdiction to try and dispose of all and any of the 
offenses against the provisions of this act occurring in 
the same county. 

Section 36. It shall be, and is hereby made, the 
duty of the several mayors and burgesses of the sev- 
eral cities, towns, and boroughs within this Common- 
wealth, to require their respective police or constabu- 
lary force, and it is hereby made their duty, as it is 
also hereby made the duty of the several clerks of 
market of said cities, towns and boroughs, to diligently 



142 farmers' rights and duties. 

search out and arrest as for a misdemeanor, all persons 
violating the provisions of this act, by having any 
game or fish mentioned therein unlawfully in their 
possession, or vending the same, during any of the 
periods prohibited in this act, within such cities, towns, 
or boroughs ; and all persons so arrested shall be 
taken before the mayor, burgess, or any police or other 
magistrate of said cities, towns, or boroughs, in which 
the arrests are made, who shall proceed to hear and 
determine as to the truth of the offense charged on the 
oath or affirmation of one or more witnesses to the 
same : Fr<ruided t That the officer making the arrest 
shall be a competent witness, and if the person or per- 
sons so arrested shall be found guilty, he, she, or they 
shall be convicted of a misdemeanor, and sentenced to 
pay the fine or fines, penalty or penalties, imposed by 
this act for having such game or fish in possession, or 
vending the same, during any of the periods prohibited 
therein, together with the costs ; one-half of said pen- 
alty shall go to the person informing, and the other 
half shall be forthwith paid to the treasurer of the 
county or city in which the offense was committed; 
and in default of payment, as aforesaid, the offender 
shall be committed to the common jail of the proper 
count}' for the term of not less than one day for each 
dollar of penalty imposed : Prozndcd, That said convic- 



GAME AND FISH ACT. 1 43 

tion shall be had within one year after committing the 
offense : And provided further, That the defendant may, 
on refusing to pay said penalty, enter into a recogniz- 
ance, with one or more sufficient sureties, to answer 
said complaint on a charge of misdemeanor before the 
court of quarter sessions of the peace of the county 
in which the offense is committed, which court, on 
conviction of the defendant of the offense charged, and 
failure to pay the penalty of penalties imposed by this 
act, together with costs, shall commit said defendant 
to the common jail of the county for a period of not 
less than one day for each dollar of penalty imposed: 
Provided further, That nothing in this section shall 
prevent any person or persons, other than those par- 
ticularly mentioned in this section, and having a 
knowledge of the violation of the provisions therein 
mentioned, from laying information of the same, and 
proceeding to recover the penalty or penalties therefor, 
in the manner prescribed in the following section, who 
shall also be a competent witness on trial of the case. 
Section 37. Whenever any officer or constable 
making complaint of the violation of any of the pro- 
visions of this act, shall fail to recover the penalty or 
penalties therein mentioned, in any prosecution or suit 
commenced by him, or them, pursuant to the foregoing 
sections of this act, the costs of suit incurred by him 



144 FARMERS RIGHTS AND DUTIES. 

or them shall be a charge upon the proper county, and 
shall be audited and allowed as other county charges 
are audited and allowed. 

Section 38. In all cases not separately and particu- 
larly provided for in other sections of this act, wher- 
ever the penalty or penalties mentioned in said act 
exceed in amount the jurisdiction of aldermen or jus- 
tice of the peace, it shall be the duty of the district 
attorney for the county where the offense is committed 
to commence action for the recovery of such penalties, 
upon receiving proper information thereof, in the court 
of quarter sessions of the peace, or other court having 
jurisdiction in the proper county, and in all such 
actions brought by such district attorney, one-half the 
penalty recovered shall belong to the person laying 
information on which the action is brought, and the 
other half shall be paid to the treasurer of the county 
in which the offense is committed. 

Section 39. All actions for violation of the provis- 
ions of this act, except where otherwise therein di- 
rected, shall be brought within one year from the time 
such violation is committed. 

Section 40. Nothing in this act shall be construed 
to apply to any stream forming the boundary line be- 
tween this and any State over which this State has 
concurrent jurisdiction with such State, so far as such 



GAME AND FISH ACT. 145 

streams form such boundary line, nor to any lake 
partly within the boundaries of this State. 

Section 41. All acts or parts of acts which are in- 
consistent with this act, be and the same are hereby 
repealed. 

J. F. HARTRANFT. 
Approved June 3, 18 78. 
7 



INDEX 



PAGE. 

Action, lies for breach of verbal agreement, sale of land 9 

lies for breach of warranty agreement, sale of land 65 

Acceptance, what constitutes . . • 8 

Accretion, doctrine applied to grass at bottom of pond 99 

land created by alluvium 

Agents, acts of, when principal bound by 64 

Animals, liability for trespass . . .• 49 

damage by trespassing . 49 

ordinary care of vicious animals 61 

' when may be killed. See Dogs 

riparian proprietor, right to water stock 26 

warranty of soundness 63 

Boundary, when runs to middle of road 15 

when runs along a stream 15 

when runs along streets 17 

when runs along mill ponds 14 

limitation of. 15 

Breach of Warranty, of unsoundness 64 

when broken 64 

remedy for breach «. 65 

Crops, tenant entitled to way-going crop 97 

pass by sale of land, unless reserved 20 

Cattle. See Estrays. 

Contracts, agreements as to land 7 

when oral not binding 7 

when binding as to warranty 64 

Damage, animals trespassing 49 

against owner of dog for injury to sheep 53 

by fire , 7 2 

breach of warranty 65 

nominal damages when recoverable 9 

Deed, what it includes 1 7 

general signification of land 1 8 

(147) 



148 



INDEX. 



PAGE. 

: id 

. must join II 

acknowledgment of wife, how taken 1 1 

- : be recorded 12 

buildings belong to realty, when 1 8 

growing crops pass with sale of realty 20 

manure in barnyard passes 20 

ling trees ps 20 

Dogs, owners responsible for injury done to sheep ;:. 53 

joint owner responsible in joint action ;_ 

persons harboring deemed to be owners 52 

when lawful to kill 54 

poisoning unlawful 54 

sponsible for injuries to sheep by fright £4 

in New Y »est dog supposed to kill the most 54 

may shoot a dog when bitten by him 54 

may kill when in act of worrying sheep 54 

Division fence, obligation to build. Set Ft .. 31 

charge of 51 

i ; ty of owners 52 

owner of uninclosed land 34 

on line of railroad 36 

of railroads as to. See Fences 39 

; s, deGnition of _ : 

animals wild by nature _ : 

swans may t e estrays 40 

duty of persons finding estrays 41 

penalty for neglect _i 

be sold -2 

jurisdiction of Justice? - _c 

constable to give at least ten days notice of sale 

how notice to be given > _: 

make returns to justice 42 

disposition of fund 42 

owners right to notice 

penalty for unlawfully selling an estray _; 

may milk a cow 41 

must not:: 

Farm, how to buy 7 

oral bargain not binding 7 

1 a offer to sell, must be accepted S 

action will lie for breach of verbal bargain 9 

nominal damages when recoverable '. 9 

how far extends 13 



INDEX. 



149 



PAGE. 

lands described in one township and being in another, how- 
passes , 14 

land described in name of warrantee passes what 14 

land described by metes and bounds passes what 14 

monuments, importance of 15 

fraudulent statements, remedy , 15 

boundary lines, termination of 15 

construction along road or stream 15 

flat lands, how passes. 16 

low water mark, what constitutes 16 

boundary lines on streets and mill ponds 17 

Fixtures, when part of realty . , 19, 90 

when personal property 19, 90 

character of physical annexation (Criterion) 19 

tenants' right of removal when , 90 

Fires, firing leaves and brush, w r hen owner responsible 72 

must burn brush and leaves at the proper time 72 

negligence does not always make liable 72 

only when intended 72 

damage result of carelessness, owner responsible 72 

damage caused by lightning, not recoverable. . 73 

responsibility of railroad company 74 

not liable unless proof of negligence 74 

when no direct proof of negligence, responsibility depends 

how 74 

contributory negligence, how 74 

owners of property near railroads must take risk 74 

fire thrown from locomotive, wdien company responsible 75 

owners not bound to exercise unusual means to guard against 

negligence of railroad companies 75 

P'ences, common law rule 30 

every farmer must fence his own land 31 

rights under act of I ith of March, 1842 31 

charge of division fence, by whom borne 31 

auditors of respective townships fence viewers 31 

duties of auditors as such 32 

adjoining owners, each must build one-half the fence. ..... 32 

liability for neglect 32 

common law rule when cattle escape through defective 

fence 32 

liability as to third persons .32 

means of redress 32 

liability for cattle turned into road ^ 

liability when bars are left down 23 

when liable for trespass of cattle on highway, 33 

improved lands must always be closed. 33 

13* • 



I50 INDEX. 

PAGE. 

statutory requirements for fence 34 

kind of fence necessary to be entitled to damage 34 

owners may agree not to make common division fence 34 

law of, when has stood 21 years 34 

consequences of unlawful removal 34 

common division fence, when required 34 

each owner may build his own fences 35 

must keep in repair 35 

not necessary through woodland 35 

law of, along line of railroad 36 

railroad company not bound to fence its road 36 

liability for cattle killed on track 36 

liability for, in purchasing right of way 36 

not responsible unless for negligence 36 

law of, when cattle unlawfully stray upon track 36 

Fraud, definition of, in sales of stock 62 

silence on part of seller not fraud 62 

Gates, when to be erected 24 

when to be kept shut 24 

responsibility of, when left open 25 

Growing Crops . 

Highways, See Roads. 

rights of public 79 

title to land in 79 

rights of owner , 79 

owner of adjoining land 78 

Hunters, liability for fire caused by 72 

Keeper, of vicious animals 59 

of dangerous animals 60 

of sheep-killing dog 54 

Landlord and Tenant, landlord assumed to own land leased 83 

tenant to have free use of premises leased 83 

tenant not to be disturbed in his possession 83 

landlord disturbs tenant at his peril 84 

if tenant ousted discharged frOm rent 84 

law implies demised premises free from encumbrance 85 

landlord to pay taxes 85 

if tenant pays entitled to credit on rent 85 

covenants may be waived by either party 86 

tenant to make repairs 86 

rent may be collected if buildings burn down 86 

tenant liable for ordinary repairs 87 



INDEX. 151 

PAGE. 

cannot be charged to landlord , 87 

repairs depend upon usages of vicinity. SS 

duty of tenant to prevent waste . 88 

• loss by tire, when waste 88 

cutting wood not necessarily waste 89 

waste to cut wood from an orchard 89 

tenant entitled to necessary wood for domestic use 89 

tenant to protect property from injury . . , 89 

tenant must make good all injuries 90 

tenant right to remove fixtures, when 90. 91 

wooden buildings, when may be removed 9 . 91 

tenant entitled to way -going crop 91 

way-going crop confined to fall grain 91 

tenant entitled to straw as well as grain 92 

landlord's interest passes, when 92 

cropper not a tenant 92 

rent of cropper, when due 92 

rule when rent reserved in grain in the bushel or at mill 93 

tenant accountable for rent, how 93 

notice to quit, when and how given 93, 94 

Manure, to whom belongs. 20 

rule when previously sold -. 20 

Mortgage, rights under ....... 12 

when must be recorded 12 

result of not recording 13 

Nuisance, two kinds of. . , 95 

public and private 95 

obstruction of ancient lights 95 

noisome or offensive animals near dwelling 95 

offensive trade near dwelling 95 

smelling house near cornfield 96 

to corrupt a stream a nuisance . , 96 

any interference with rights of another, nuisance 96 

occupier of property, what bound to prevent, 97 

natural flow of stream not to be interfered with ' 97 

proprietor not responsible when result of natural causes 98 

proprietor not bound to abate, when , 98 

when grass at bottom of pond a nuisance 99 

land owner responsible, when ico 

cannot assign his wrong . 100 

noisome trades not always nuisances. 100 

noise in night time, when nuisance 101 

landlord responsit le to public when 102 

ferocious animals sometimes 102 



152 INDEX. 

PAGE. 

animals ferae naturae must be chained 103 

dog disposed to bite must be kept muzzled . 103 

what business may become nuisance 104 



24 

2: 



Private Roads, how obtained 

how opened 

how kept in repair .*.... 2^ 

damages therefor by whom paid 26 

Railroad Companies, not bound to build fence along line 36 

not liable for cattle killed on track. . 36 

purchasing right of way 36 

responsible when result of negligence 36 

cattle unlawfully on track 36 

Right of Way. where exists 24 

when ceases 24 

obstruction, what constitutes 24 

must be removed, whose duty 24 

Roads, rights in 

farm bounding on a road extent of line 78 

owner of land owns soil alongside 78 

may use grass, stones, etc 78 

public have superior rights 78 

road supervisor, rights of 7S 

must be kept open 78 

deposits of rubbish forbidden 7S 

rights of soil reside in proprietor of land 79 

citizens' license to pass along 79 

no one can obstruct highway 79 

public requires but an easement 79 

proper remedy for timber cut on road 79 

droves of cattle and sheep, rights of. . . 79 

unlawful to hitch horses in front of door So 

if horse gnaws fence, right to remove him So 

unlawful interference, of what consists 80 

may be indicted for obstructing highway , 80 

when road vacated land reverts to owner of soil 80 

traveler may use middle or either side of it Si 

mail coach not privileged Si 

custom to turn to right Si 

horsemen must turn out when S2 



Soundness, in a horse, definition of 6 



Trespass, definition of 45 

owners, right to land exclusive. 45 



INDEX. I 5 3 

PAGE. 

every entry on land a trespass 45 

unless by owner's leave 45 

especially if contrary to his express order 45 

Roman laws required direct prohibition 45 

English rule 46 

act of breaking close, what constitutes 46 

every trespass an injury 46 

when authority to enter lands is exceeded 46 

rubbish and stones thrown on land trespass 47 

direct and consequential trespass 47 

law as to water spouts 47 

liability when eaves project 48 

firing of a gun into a field trespass 48 

balloon passing through the air 48 

trespass may be committed by animals . . . - 48 

when owner liable for trespass by animals 49 

when responsible for servant or strangers 49 

liability for cattle trespassing on highway 5° 

law when no division fences 5° 

penalty when owner neglects to fence 5 l 

law under act of 1 700 5 1 

improved lands must be fenced 5 1 

owner's neglect deprives him of damages 5 1 

no remedy for trespass by rabbits and pigeons. ... 51 

remedy only in their destruction 5 2 

no remedy against breeder of pigeons 52 

dog may commit trespass 5 2 

owner of vicious dog must confine him 5 2 

person harboring dogs supposed to be owner , 53 

owner liable for injuries committed to sheep 53 

when dog may be killed 54 

law in New York as to dogs 54 

owner liable for damages done to sheep by dogs 54 

hunting and fishing trespass , 55 

circular fox hunts, etc 5 6 

Trees, adjoining proprietors joint owners of line trees 37 

fruit tree on line, each entitled to one-half fruit 37 

fruit on limbs overhanging belong to owner of tree 38 

owner has a right to gather the fruit 3^ 

penalty when owner of soil attempts to prevent 3^ 

remedy where limbs overhang 3^ 

Water Rights, water common in its nature 26 

one cannot use a stream to detriment of another 26 

may change course in own land 26 

must turn into original channel, when 26 

may build fish ponds 26 



154 INDEX. 

PAGB. 

must not force water back on land above 27 

no sort of property in water 27 

but has right to use water as it flows along 27 

may erect mill on stream 27 

but must not injure his neighbor's mill 27 

has a right to detain water 27 

water power, in what does it consist 2S 

obstructions to stream, how removed 2S 

water sometimes mentioned as a species of land 2S 

surface water, of what does it consist 29 

right of surface water defined 29 

water in streams not surface water 29 

may be turned into neighbors meadow 30 

protection against surface water 30 

rights of road supervisor in relation thereto 30 

underground water, no ownership therein 30 

Waste, two kinds, voluntary and permissive 89 

destruction of buildings by storm, when waste 88 

destruction of fences by storm, when waste SS 

cutting wood not necessarily waste 89 

but cutting wood from an orchard waste 89 

Ways, two kinds, particular and prescriptive "... 21 

statute of limitation, when bars entry 21 

right by limitation, when gained 21 

for particular purpose, when ceases 22 

by operation of law, when gained 23 

Roman law concerning ways 23 

ways of necessity, what constitutes 23 

limited to single way 23 

must be convenient. 24 

grantee has first right to locate 24 

when right of way ceases 24 

obstruction, what constitutes 24 

obstruction to be removed, whose duty 24 

Warranty, of two kinds, general and particular , 62 

may be express or implied 62 

buyer must not be deceived 62 

usages of trade largely govern 62 

breach of warranty does not authorize buyer to return article 

sold 63 

action will lie against seller, when 63 

high price paid will not imply warranty 63 

no particular form of words necessary 63 

assertions of soundness in the animal constitutes warranty. 63 

representations at time of sale, general rule of. 63 

general warranty, extension of 63 



INDEX. I 5 5 

PAGE. 

roaring constitutes unsoundness 64 

lameness constitutes unsoundness 64 

bone spavin in the hock unsoundness 64 

when warranty broken 64 

implied warranty by servant or agent 64 

when master responsible 64 

warranty may be for a limited period 65 

remedy for its breach 65 

must tender the horse to the seller 65 

on refusal to receive action will lie 65 

length of time does not alter contract 66 

duty of purchaser after giving notice of breach , 66 

entitled to compensation for keeping 66 

entitled in case of sale to price of horse 66 

liability when sold as an estray. 67 

action on the breach of warranty, proper remedy 67 

in the absence of fraud or warranty unsoundness no de- 
fense '. 68 

agreement to deliver horse at a certain time 68 

law as to manifest defects 69 

proof of warranties, how made 70 

oral evidence, effect of. 70 

construction of warranties 71 



il III 



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021 048 298 2 




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